OUTER HOUSE, COURT OF SESSION
[2010] CSOH 38
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P1477/09
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OPINION OF LORD BRODIE
in the petition
JOHN HUMPHRIES PARKES
Petitioner;
against
CINTEC INTERNATIONAL LIMITED
Respondent:
ญญญญญญญญญญญญญญญญญ________________
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Petitioner: Party
Respondent: Barne, Advocate; Shepherd & Wedderburn
18 March 2010
Introduction
[1] This is an application, in terms of paragraph 10 of Schedule 6 to the Civil Jurisdiction Act 1982, to reduce the registration of a Certificate of money provisions contained in a judgment. As is required by Rule of Court 62.37(3), the application is brought by way of petition. The petitioner is John Humphries Parkes who resides, as appears from the petition, at Redhall Mill Cottage, Colinton Dell, Edinburgh, EH14 1JF. The judgment to which the Certificate relates is a Final Order issued by the Chancery Division of the High Court of Justice in England on 16 October 2003. The petitioner is a judgment debtor in respect of the Final Order. The judgment creditor is Cintec International Limited, which is the respondent to this petition. The Final Order was made of consent of the petitioner and his co-defendant, Mr Martin Frost. It followed the judgment of Mr Justice Laddie as set out in Cintec International Limited v John Humphries Parkes (t/a Dell Explosives) and Martin Frost [2003] EWHC 2328 (Ch).
[2] Schedule 6 to the 1982 Act makes provision for the enforcement in one part of the United Kingdom of a judgment containing money provisions made in another part of the United Kingdom. The mechanism is that an interested party who wishes to secure enforcement may apply to the proper officer of the court pronouncing the judgment ("the original court") for a Certificate in the prescribed form. The interested party may then apply in the prescribed manner to the proper officer of the superior court in the other part of the United Kingdom in which he wishes to enforce the judgment in order that the Certificate be registered. In Scotland the proper officer to whom an application is to be made is Keeper of the Registers of Scotland. The manner of the application is prescribed by Rule of Court 62.37(1). Once registered by the Keeper the Certificate becomes the equivalent of a Court of Session decree. However, it may be reduced by this court if, on an application such as the present, the court is satisfied that the registration was contrary to the provisions of Schedule 6 to the 1982 Act.
[3] In the present case, as appears from the averments in the petition, the respondent applied to Master Bragge, a Master of the Supreme Court Chancery Division for a Certificate as provided by paragraph 2 of Schedule 6 to the 1982 Act. Master Bragge issued a Certificate, dated 29 January 2004, a copy of which is 6/5 of process (the "Certificate as 6/5"). The Certificate as 6/5 did not include the petitioner's address or that of Mr Frost. In the petition the Certificate as 6/5 is referred to as the "original Certificate". What occurred following the issue of the Certificate as 6/5 is averred in the petition as follows:
"2. The original Certificate, when first presented to the Registrar for registration in the appropriate register on behalf of Cintec, the Registrar refused to register said Certificate owing to the fact that the Certificate was incompetent as the parties had not been designed upon said Certificate signetted and sealed by the grantor (the English Court of Chancery).
3. Those acting for Cintec subsequently took it upon themselves to make alterations to the original incompetent Certificate by hand written additions upon what was ex facie a 'Sealed Order' of the English Court of Chancery. Cintec's Scottish law agents returned to the Scottish Registrar bearing their altered document, said alterations having been executed in Edinburgh without (i) the original grantor's knowledge and (ii) the original grantor's permission, said original grantor being a Master of the English Court of Chancery. It is apparent that the Scottish law agents, instructed by Cintec then uttered their doctored document to the Scottish Registrar as a genuine 'Signed' and 'Sealed Order' of the English Court of Chancery compliant with relevant law, whereupon the Registrar was then obliged to register the Certificate as a genuine document as issued by the English Court of Chancery."
The respondent disputes that the Keeper refused to register the Certificate as 6/5 but it is accepted that prior to applying for the Certificate to be registered on 2 February 2004, a solicitor acting for the respondent added in manuscript "residing at Redhall Mill, Colinton Dell, Edinburgh EH14 1JF" with a caret immediately after the petitioner's name and "residing at [Mr Frost's address]" with a caret immediately after Mr Frost's name. A copy of the Certificate with these additions is 6/6 of process (the "Certificate as 6/6"). It is the Certificate as 6/6 that is referred to in the petition as the "doctored document".
[4] The petitioner's case, as averred in the petition, is that the Certificate as 6/6 that was registered by the Keeper is not one and the same Certificate as that which was signed and sealed by Master Bragge on 29 January 2004 (the Certificate as 6/5). He avers that registration was effected by the fraudulent uttering of a forged document. He further avers that the respondent had failed to adhere to the terms of the Final Order.
[5] The petitioner has previously challenged the Certificate before the English High Court. On 19 May 2009 Master Bragge refused the petitioner's application for an order to revoke the Certificate. When made, the Final Order, insofar as relating to payment by the petitioner and Mr Frost, was stayed on certain terms. Whereas the petitioner endeavoured to comply with these terms (as he avers in the petition), Mr Frost did not. It was argued on behalf of the petitioner that Master Bragge had been misled as to the stay. In his Note of Judgment (7/18 of process) Master Bragge states that he was not so misled. Rather, he had been satisfied (and remained satisfied) that by the date of the Certificate the stay had come to an end. As to the addition of the petitioner's address and the address of Mr Frost to the Certificate as 6/5, subsequent to his issuing it on 29 January 2004, Master Bragge said the following (in what appears to be his unrevised Note):
"The Certificate I gave is the same as the Certificate that has recently come into Mr Parkes's hands from the public record of Scotland. Someone has added information to the document registered, on the front page, next to the Defendants' names, the numerals 1 and 2 and their addresses. With reference to the numerals, addresses were added for the First Defendant in Edinburgh and the Second Defendant in Kelso."
"...
It appears to me, in and so far the fact that addresses were later added and not here at Court, is a matter for the Scottish Courts. As far as this Court is concerned, I am satisfied that absence by simple omission of the type in issue would be one that one would readily seek to put right. There is no indication that the court was misled or the addresses were inaccurate. Court has provision under CPR 3.10 to rectify procedural error. It appears to me that it was in no doubt a mistake on the Certificate that was presented to me, the address was not included but it appears no more than an unfortunate mistake and does not appear to be a matter the Court was misled on or indeed, was it indicative of any improper activity by [the respondent's solicitor].
Therefore it cannot be a matter for this court to determine the issue of adding addresses; this is a matter for the Scottish procedural law."
The petitioner applied for permission to appeal from Master Bragge's refusal to revoke the Certificate. Permission was refused by Mr Justice Peter Smith on a paper application on 19 October 2009. The petitioner made a request dated 26 October 2009 for an oral hearing on his application for permission to appeal. An oral hearing was thereafter arranged. After that hearing permission to appeal was again refused, on this occasion by Mr Justice Morgan.
Appearance and Submissions
[6] The petition called before on 4 March 2010. The petitioner appeared on his own behalf. Mr Barne, appeared on behalf of the respondent. I heard submissions from the petitioner under reference to two written statements and a letter of 10 February 2010 addressed to the Lord President. I heard submissions from Mr Barne. The petitioner's motion was that I should grant the prayer of the petition to the extent of reducing the registration of the Certificate. Mr Barne's motion was to dismiss the petition.
Submission for the petitioner
[7] The petitioner offered to make a statement on oath. I indicated that this was unnecessary as, for the purposes of the hearing, I was prepared to accept what he said and what was averred in the petition as being accurate. The petitioner thereupon made an admirably succinct submission. He drew my attention to what appeared in the commentary to the Rules of Court at paragraph 13.2.2 in relation to the correct designation of parties in a summons. As the authorities there cited demonstrate, a full designation requires a correct name and address. The Certificate as 6/5 had not contained the addresses of the petitioner and Mr Frost. The English High Court has power to amend a Certificate granted in terms of Schedule 6 to the 1982 Act. It would be easy for the respondent to have the Certificate amended. He would not oppose such amendment but the Certificate as 6/6 had been registered by the Keeper as a result of fraud. The petitioner referred to the definition of fraud in Adcock v Archibald 1925 JC 58 as the procuring of a practical result by means of deceit and what was said in Macdonald v Tudhope 1984 SLT 23 as to it being sufficient for uttering that what was presented was deceitful and designed to deceive. The petitioner took issue with the participation in the hearing before me of the instructing solicitors for the respondent. It was they who had made the additions to the Certificate as 6/5. Their appearing to defend their own actions was an unacceptable conflict of interests.
Submission for the respondent
[8] For the respondent, Mr Barne began by drawing attention to the Opinion of Lady Paton in John Humphrey Parkes v Robin MacGregor and Cintec International Limited [2008] CSOH 43 as providing a useful background to what was in issue in the present petition. As appeared from Lady Paton's Opinion, following registration of the Certificate, a charge for payment had been served on the present petitioner. The charge had expired without payment. The present respondent had then sought the petitioner's sequestration in Edinburgh Sheriff Court and on 10 June 2004 the petitioner had been sequestrated. In the action before Lady Paton the petitioner had sought reduction of the award of sequestration. In a separate process the petitioner had petitioned for recall of the sequestration. That petition had been dismissed by Lord Macphail on 26 July 2005. The petitioner reclaimed that dismissal and the matter came before the Inner House on 30 November 2005 but the petitioner then no longer insisted upon that reclaiming motion and it was duly refused. After debate on Procedure Roll Lady Paton dismissed the action for reduction. The petitioner has reclaimed against that decision. As I understood Mr Barne (and indeed the petitioner), a consideration of that reclaiming motion has been deferred pending resolution of the present petition for reduction of the registration of the Certificate. Mr Barne's primary submission was that the Certificate as 6/6 it was not invalid. His secondary submission was that the petitioner was barred by reason of mora taciturnity and acquiescence from obtaining reduction of the registration. At no time during the procedure leading up to his sequestration (when he had the benefit of legal representation) had the petitioner questioned the registration of the Certificate. Turning to the question of the validity of the Certificate, Mr Barne submitted that the English Court had concluded that it was a good Certificate, albeit that the slip in failing to provide the addresses of the defendants could be cured under reference to CPR 3.10. As far as English Law was concerned the Certificate had been issued in accordance with Schedule 6. Accordingly, the Keeper was presented with a valid Certificate. That the Certificate did not have addresses which were thereafter added did not invalidate it. There is no suggestion that what was added to the Certificate was inaccurate or that the addition of the addresses was prejudicial to the petitioner. Reference was made, by way of analogy, to King v Creighton (1841) 4D 62. Mr Barne reminded me that the petitioner had signed the consent order. All subsequent attempts to overturn the underlying liability had been unsuccessful. The Final Order was enforceable. The Chancery Master had not been misled.
[9] If his primary submission was not accepted, Mr Barne submitted that the petitioner was nevertheless barred by mora taciturnity and acquiescence from presenting this petition. If there was indeed a defect in the registration of the Certificate, the petitioner could not sit on his hands and allow further procedure to follow. The effect of paragraph 6 of Schedule 6 was that the registered Certificate was the equivalent of a Court of Session decree. It had the same force and effect and the same powers were available for its enforcement. Once the Certificate was registered the petitioner was in the same position as an unsuccessful litigant against whom decree had passed. If he wishes to challenge it, he must take immediate steps. The law relative to mora taciturnity and acquiescence had been discussed in Somerville v Scottish Ministers 2007 SC 146 at paragraphs 90 to 94. The case had subsequently gone to the House of Lords but that issue had not been revisited. The effect of acquiescence in the particular context of judicial proceedings is discussed in McAskell v Nicol 1942 SC 17, Ferguson's Tr v Reid 1931 SC 714 and McCue v Daily Record 1998 SCLR 742. The right to reclaim against an interlocutor may be lost if the interlocutor is acquiesced in. Mr Barne also referred to McCarroll v McKinstery 1926 SC(HL) 1 at 6. It was for the petitioner to explain his delay. This he had not done. When looking for such an explanation, regard should be had to the fact that in what was a summary process pleadings should not be subject to overly strict scrutiny, they could properly be supplemented by consideration of documents: Grantly Developments v Clydesdale Bank and Others, unreported, 14 March 2002. Reference was made to Ingle v Ingle's Trustees 1997 SLT 166 and Walker Civil Remedies at pages 179 to 186. It was not enough for the petitioner to claim that he had been unaware of what he now alleged was an irregularity invalidating the Certificate as 6/6. He should be held to have acquiesed if the facts on which he now founded could have been ascertained by reasonable diligence at an earlier stage. Mr Barne invited me to conclude that the petitioner was barred by reason of mora taciturnity and acquiescence but he recognised that it might be necessary to fix a second hearing in order that evidence might be led in order to establish when the petitioner knew, or should be taken to have known, of the irregularity in the Certificate.
[10] In a second speech the petitioner emphasised that he did not accept that the Certificate as 6/6 was good. He had only recently learned that the Certificate had been doctored. There was nothing about its appearance which would suggest that, given the fact that the Master had made a manuscript addition to the Certificate prior to its issue as 6/5. The case of a promissory-note as discussed in King v Creighton did not provide a good analogy. The court there was not dealing with a court order or sealed judgment. No judgment of a court could be allowed to stand if it has been obtained by fraud and there was no time limit on wrongdoing. There could be no question of acquiescence when the petitioner was unaware of the circumstances now founded upon. The advice available to the petitioner was that the Keeper would not register the Certificate if parties were not designed. The petitioner reminded me of the maxim that he who comes to Equity must come with clean hands. The respondent had failed to cite any authority directly on the point. If the registration was allowed to stand where do we start or stop? What is the point of a document being under seal if it can then be altered? What indeed is the point of law and procedures? Reference was made to what had been said by Lord Penrose in Blackfriars (Scotland) Ltd v Shetland Son & Co's Trustee 2001 SLT 315. The petitioner was not disputing the accuracy of the addresses that were added to the Certificate as 6/5 but this was a matter strictissimi juris. What had been registered was a forged document, in that it pretended to be genuine in the sense that it pretended to be authenticated by a particular person when he had not done so or at least not done so when it was in its final form. It told a lie about itself: Stair Encyclopaedia Volume 7 Criminal Law paragraph 373.
Discussion
[11] The Court of Session may reduce the registration of a Certificate issued in terms of paragraph 4 of Schedule 6 to the 1982 Act if, but only if, it is satisfied that the registration was contrary to the provisions of the Schedule. The petitioner points to the uncontroversial fact that what was registered was the Certificate as 6/6 whereas what was issued was the Certificate as 6/5, which he reinforces with the averment, which is denied, that when the Certificate as 6/5 was presented, an officer of the Keeper refused to register it, that it was taken away and that what was then returned was the Certificate as 6/6. It is not so averred in express terms but the references to fraud and the uttering of a false or doctored document suggest that it is the petitioner's position (and this is how I understood it) that the relevant officer was deceived into believing that the manuscript additions of the addresses of the petitioner and Mr Frost had been appended prior to the Certificate being signed and sealed by the Master of the Supreme Court Chancery Division or had at least been seen and had in some other way been approved by the Master. I say "at least been seen" because if one supposes that the officer who refused to register the Certificate as 6/5 was one and the same person as registered the Certificate as 6/6 (and only one officer is named in the petition) that officer would presumably be aware of what appeared and what did not appear on the face of the Certificate as 6/5 and the date of its certification. That officer would therefore be aware that the additions which appeared on the Certificate as 6/6 had not been the subject of the signature and seal of the Master, as appended on 29 January 2004.
[12] As I would understand it, the petitioner founds on two principles which I would accept as being fundamental in our legal system as, no doubt, in others. The first can be expressed by reference to the Latin tag strictissimi juris: the strictest letter of the law. As the petitioner explained, the idea that underlines this principle is that where a party avails himself of a privilege or of draconian powers as, for example, when a creditor proceeds to sequestrate his debtor, he must exercise the privilege or use the powers strictly in accordance with their terms, at risk of losing their benefit entirely should he fail to do so. One of the authorities on what is required by way of sufficient designation of a party to a litigation which is cited in paragraph 3.2.2 of the commentary to the Rules of Court, which was referred to by the petitioner, is Joel v Gill (1859) 2 2 D 6. Lord Justice Clerk Inglis began his Opinion by the following quotation (taken, as I understand it, from what had been said at an earlier stage of the proceedings in the same case):
"In awarding and recalling sequestration, we are not exercising any discretion. We have the statute, and the statute only, for our guide in the administration of this branch of the law; and we are bound to disregard all consideration of mere equity and expediency. Sequestration being a diligence, and the most comprehensive and stringent of all diligences, it would be most unfortunate if its application and effect depended on anything less unbending than statutory rule".
This was the approach which, as I understood him, the petitioner was commending in the present case. The second principle founded on by the petitioner is that no one should be allowed to benefit from his own fraud. As it was put by Denning LJ in Lazarus Estates Ltd v Beasley [1956] 1 QB 702 at 712 in a passage reproduced by the petitioner as 6/13 of process:
"No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything."
As the petitioner argues that the application of these principles leads to the conclusion that the registration of the Certificate as 6/6 was contrary to the provisions of Schedule 6, I must consider what occurred with these principles in the forefront of my mind.
[13] As far as the provisions of paragraphs 1 to 4 are concerned, I had the benefit of the Note of Judgment of Master Bragge in respect of the petitioner's application to revoke the Certificate. Permission to appeal that judgment has been refused. The petitioner's primary argument before Master Bragge was that Master Bragge had been misled into issuing the Certificate because the stay was still in operation but Master Bragge was also "encouraged...to deal with the form of the Order in the public records of Scotland." It appears to me that Master Bragge considered there to be no material difference as between, on one hand, the Certificate 6/5, and, on the other, the Certificate as 6/6. As he puts it in his Note of Judgment: "The Certificate I gave is the same as the Certificate that has recently come into Mr Parke's hands from the public record of Scotland." Master Bragge then later goes on in the terms that I have already quoted. The absence of an address can be regarded as a mistake but a mistake that may readily be corrected and one which does not affect the validity of the Certificate as issued on 29 January 2004. Thus, from the English perspective, the Certificate as 6/5 is a good Certificate, albeit that it has an omission. The Certificate as 6/6 remains a good Certificate, albeit with "added information". I see the validity of the Certificate to be a question for the original court and as having been determined by Master Bragge, but, at risk of supererogation, I observe that there is no requirement in the Schedule or, apparently, in the relevant English Rule of Court, CPR 74, that the address of the judgment debtor be included in the Certificate. As the petitioner stressed in argument, there is a requirement in CPR 74.4 that the party applying for a Certificate should state the address of the judgment creditor, if known. However, the petitioner does not say or aver that the respondent did not in fact include the petitioner's address in the relevant application. Master Bragge's reference to a "mistake", if anything, suggests that it did. Moreover, the qualification that the address of the judgment debtor be included "if known" must mean that a Certificate without an address will be good. In relation to the Certificate as 6/6 I would observe that, first, the information added by in the form of the addresses is entirely accurate and, second, strictly speaking (and it is a "strictissimi juris" approach that the petitioner commends), its position is such that it does not form part of the document which bears to be certified by the Chancery Master.
[14] Turning to paragraph 5 of the Schedule, that was complied with by the respondent. The respondent applied, in the manner prescribed by Rule of Court 62.37, to the Keeper of the Registers. It presented a Certificate issued by the original court. The petitioner avers that the Certificate as 6/5 was presented first and only after the Keeper had refused registration was the Certificate as 6/6 presented. While I take that to be so (I have noted the reference in Master Bragge's Note of Judgment to an email from the named officer of the Keeper which states that parties must be named and designed and I take that to be the officer's view), it is not clear to me by what authority the Keeper refused to register the Certificate as 6/5. Neither the petitioner nor Mr Barne pointed to anything and my own research has failed to disclose anything. Paragraph 5(3) of Schedule 6 requires the Keeper to register the Certificate where an application is duly made. Here the application was duly made. I can readily understand that it may be the practice of the Keeper to require or at least suggest that a person named in a decree be designed by reference to an address and, indeed, given the petitioner's averments, I take this to be the case, although I would not know how far the Keeper feels able to take such a practice (in Joel v Gill supra Lord Justice-Clerk Inglis held the designation of an English barrister fleeing his creditors as "William Gill residing in Tobermory" to be sufficient). The authorities collected at paragraph 3.2.2 of the commentary to the Rules of Court including Joel v Gill demonstrate that the party to a litigation must be designed, usually by reference to his residence (although there are cases where this will be impossible) and I immediately see that enforcement may be difficult in the event that the party against whom decree has passed is identified only by a name. Be that as it may, in the present case the Keeper did register the Certificate as 6/6. All the information on the Certificate as 6/6 is accurate. Nothing which is expressly certified by the Master was added after he signed and sealed the Certificate on 29 January 2004. The Master has recognised the Certificate as 6/6 as "the same as" the Certificate as 6/5. On the approach indicated by the expression strictissimi juris I see that as an end to the matter. Nothing has been put before me to suggest that registration was contrary to Schedule.
[15] I am reinforced in the view expressed above (which I see also to be the view of Master Bragge) that the addition of the addresses is, essentially, neither here nor there by the opinions of Lord Medwyn and Lord Moncrieff, with which other members of the Court concurred, in King v Creighton supra. In that case designations, in large part inaccurate, had been added to the names of the indorsers of a promissory‑note. It was held that the addition of the supposed addresses of the indorsers was of no consequence and did not vitiate a protest and the diligence which followed on the protest. Lord Medwyn considered the addition to be a mere memorandum, wholly immaterial to the Bill as a document of debt. Now King v Creighton is not an exact analogy with the present case. There are, however, similarities. Just as the endorsed note was a valid document of debt which was not invalidated by the addition of addresses, so was Certificate as 6/5 a valid Certificate of the indebtedness of the petitioner and Mr Frost as constituted by the Final Order. I cannot see that the addition of the addresses of the judgment debtors (both accurate) altered that.
[16] There remains the issue, on the petitioner's submissions, of fraud. The nature of fraud is that the dupe has been induced by the fraudulent misrepresentation to do something that he otherwise would not have done. A completed fraud must have a practical effect. I simply do not see how it can be said that there was a completed fraud in the present case. As I have already had occasion to repeat, the Certificate as 6/6 was entirely accurate. On a strict reading of the Certificate, the Master does not certify the added addresses as the addresses of the judgment debtors in the Final Order. There is nothing about the Certificate as 6/6 to suggest that it is other than the Certificate as 6/5 with the addition of the addresses in manuscript. The petitioner's averments would suggest that one and the same officer of the Keeper at first declined to register the Certificate as 6/5 and then registered the Certificate as 6/6. That being so, its very difficult to see how it can be said that that officer was misled and thus defrauded. Moreover, as far as I can see, and neither party has suggested the contrary, the Keeper would have been obliged to register the Certificate as 6/5 in the event of the respondent insisting on registration. Thus, the presentation of the Certificate as 6/6 cannot be said to have had a practical effect. Nor can it be said that the Certificate as 6/6 told "a lie about itself". The passage from the judgment of Denning LJ in Lazarus Estates Ltd v Beasley supra quoted above, continues: "The court is careful not to find fraud unless it is distinctly pleaded and proved...". That statement relates to the law of England but the same is true in the law of Scotland: Wright v Cotias Investments Inc 2001 SLT 353 at 366. Here I simply cannot see on what basis it can be asserted by the petitioner that a false representation induced a practical result. Put shortly, I do not see what difference it made that accurate addresses were added to the Certificate as 6/5 before it was presented in the form of the Certificate as 6/6.
[17] I will therefore dismiss the petition as irrelevant but it is appropriate that I give consideration to the respondent's contentions on mora taciturnity and acquiescence, albeit that they only are only of any relevance in the event that I would otherwise be persuaded to reduce the registration of the Certificate. Put shortly, the respondent's averments in support of its plea may be summarised as follows. The Certificate was registered on 2 February 2004. The petitioner was charged for payment on the Certificate on 3 February 2004. The days of the charge expired without payment despite the petitioner writing, on 25 February 2004, to state that he was actively raising funds to pay the respondent the sum of ฃ90,000 by means of remortgaging his property at Redhall Mill Cottage. Decree of sequestration passed against the petitioner on 8 March 2004. He was discharged from sequestration on 8 March 2007. At least in 2004 he had been professional represented and yet the point which is now taken had not then been raised. I was attracted by the analogy that Mr Barne sought to draw with the cases where it has been held that notwithstanding an entitlement to reclaim, a party may be barred from challenging an interlocutor by reason of his being held to have acquiesced in it simply by reason of the passage of time and subsequent procedure: McAskill v Nicol supra, Ferguson's Trustees v Reid supra and McCue v Daily Record supra. This is not, however, a plea that I consider can be given effect to without proof. Mr Barne referred me to the opinion in Somerville v Scottish Ministers supra as containing statements about the plea which were of general application, albeit that they appeared in the context of a petition for judicial review where the court was likely to be intolerant of delay. One of the quotations in Somerville, at paragraph 91, is from the Opinion of Lord President Kinross in Assets Co Ltd v Bain's Trs (1904) 6F 692 at 605. It is in the following terms:
"But in order to lead to such a plea receiving effect, there must, in my judgment, have been excessive or unreasonable delay in asserting a known right, coupled with a material alteration of circumstances, to the detriment of the other party."
At paragraph 94 the Court reminds itself of the meaning of the constituent elements in the plea: mora taciturnity and acquiescence. Delay and taciturnity alone are not enough. There must also be acquiescence which may be inferred from the whole circumstances, albeit that the court emphasised, in contrast with what was said by Lord President Kinross in Assets Co Ltd, that prejudice or reliance are not necessary elements of the plea. This leaves knowledge of the right which should have been asserted but was not, as an element in determining whether there has been delay and whether there has been acquiescence. Here it is not clear to me precisely when the petitioner learned that the Certificate as 6/6 is not exactly the same as the Certificate as 6/5 (as he would say) but it may have been about the time of the hearing before Master Bragge in 2009. The petitioner has not responded to the respondent's averments on mora taciturnity and delay but then they were only intimated on the last day for adjustments. Mr Barne was right to remind me of what was said in Grantly Developments v Clydesdale Bank and Others supra but in the circumstances of this particular case I would not have been prepared to come to a view on the applicability or otherwise of the plea of mora taciturnity and acquiescence without hearing evidence and, before that, allowing the petitioner to amend if he wished to respond to the respondent's adjustments. This is so notwithstanding what Mr Barne said, under reference to McCarroll v McKinstery supra and Ingle v Ingle's Trs supra about a party being held to be aware of facts which could have been ascertained with the application of reasonable diligence. While in my view it is of no consequence that the addresses were added to the Certificate as 6/5 after the Master had granted the Certificate, the petitioner takes a different view and, as I understand the position, he was only able to discover what he says is a relevant fact by comparing the copy of the Certificate which was retained in the original court with the Certificate that was registered by the Keeper. It is not obvious to me that that fact would have been disclosed with reasonable diligence (whatever that might involve in this particular case.) Thus, if I had been satisfied that the registration was contrary to the provisions of Schedule 6, I would have ordered a second hearing at which evidence might be led by both parties on their averments insofar as relating to mora taciturnity and acquiescence in order to give the respondent the opportunity to argue, once that evidence was led, that the plea should be upheld and reduction refused.
[18] For completeness I noted what the petitioner had to say about the participation of the respondent's agents. For my part I saw nothing improper about it but, as I explained to the petitioner during the hearing, this is not something upon which either he or I require to come to a view.
[19] As I have already indicated, I propose to uphold the respondent's fourth plea‑in-law and dismiss the petition as irrelevant, as Mr Barne invited me to do. As I am dismissing the petition I do not see it to be appropriate to uphold the sixth plea-in-law but for the avoidance of doubt, on the material before me, I would see that plea as made out. I shall reserve all questions of expenses.