Scottish Court of Session Decisions

Pursuer: Party

For First, Second & Third Defenders: Barne , advocate; Balfour + Manson LLP

For Fourth Defender: Campbell QC; Thorntons, Solicitors

[Date of Issue]29 May 2012

[1] This action called before me on 29 May 2012, on the motion roll, in respect of the pursuer's motion. After having heard parties, I gave my decision and reasons for it, orally, the same day. The pursuer having reclaimed, I have now been asked to provide written reasons.

[2] The pursuer's motion was in two parts. I can deal with the first part briefly as I do not understand my decision in respect of it to have been reclaimed against. It sought prorogation of the time for lodging what the pursuer referred to as the "final" completed Note of Objections to the Auditor's report (no.98 of process). Whilst the Rules of Court did not empower me to prorogate the time for lodging such objections, I noted that Mr Barne stated that no objection would be taken on grounds of lateness if the pursuer lodged what he referred to as a 'proper' Note of Objections within fourteen days of 29 May 2012. That concession was recorded in the Minute of Proceedings and it was on that basis that I refused the first part of the pursuer's motion.

[3] Turning to the second part of the pursuer's motion, it was:

"the cause to be sisted on the dependence of the outcome of the Appellant's application that this cause A205/04 be remitted ob contingential/conjoined with the related cause A1767/03 as made to the Supreme Court of the United Kingdom in the Notice of Appeal in that related case A1767/03 (dated 8^th May 2012)."

[4] The pursuer referred to there being a pending appeal before the Supreme Court in an action at the instance of her as Judicial Factor on the estate of the late James Clark (which is the estate referred to in the pleadings in this action). That litigation carries the Court of Session reference number A1767/03. She said that she was asking the Supreme Court to conjoin that "pending appeal" with the present action. The parties were, she said, the same and the litigations involved the same bankrupt estate. She referred to Maclaren: Court of Session Practice at p.490. This action should, accordingly, be sisted pending the outcome of her application to the Supreme Court. The pursuer had lodged written reasons in support of her motion to which I would refer for their terms; for the most part they indicate what would be her argument in her appeal to the Supreme Court and also indicate, it seems, an intention to seek to reopen arguments which have been finally determined in this action and not, so far as I am aware, appealed against. Her essential point seemed to be that she was averring fraud in 1767/03, the fraud in question was perpetrated by defenders in this action and since fraud unravelled all, there would be a good prospect of the awards of expenses made against her being opened up and revisited.

[5] The pursuer did not produce any documentation to vouch the position regarding the application to the Supreme Court to which she referred.

[6] For the first to third defenders, Mr Barne opposed this part of the pursuer's motion. There was, he submitted, no proper basis for it. This action was concluded. A final interlocutor had been pronounced. All that remained was to deal with the issue that the pursuer raised regarding the taxation of the award of expenses against her in favour of the first three defenders. No appeal to the Supreme Court had been lodged in this action. Further, so far as the first three defenders were aware, the pursuer had not infact got as far as lodging an appeal with the Supreme Court in relation to A1767/03. She was a party litigant and had not secured the signatures of two counsel or dispensation with the requirement for such signatures. In any event, the last interlocutor in that action was not a final one; proof before answer was allowed in relation to the claim insofar as directed against the first three defenders. There was, he submitted, at present, no assurance of any realistic prospect of there being any Supreme Court litigation and no realistic prospect of any conjunction of the two litigations referred to by the pursuer. Regarding the purpose of conjunction, the pursuer seemed to think that she could achieve an unpicking of the present awards of expenses against her on some inspecific principle of equitable relief but it was not at all clear that, as a matter of law, she would be able to do so, particularly since the issue of fraud was only introduced by her very late in the day.

[7] Mr Campbell QC stated that the action was concluded so far as the fourth defender was concerned. He had been awarded expenses and the sum payable had been agreed with the pursuer by way of Joint Minute. . Sisting the present action for the purpose stated by the pursuer simply did not make sense.

[8] I refused the pursuer's motion to sist the cause. The onus was on her to show that circumstances existed which could justify a sist and that, in the circumstances, I ought to exercise my discretion so as to grant the sist she sought. I did not consider her to have discharged that onus. Although she referred to having appealed to the Supreme Court, she produced no document to demonstrate that any such appeal had been instituted. Nor, if there was such an appeal, was I satisfied that there were any reasonable prospects of this action being conjoined with it. The outstanding issue between parties in this case is not whether or not the first to third defenders are entitled to expenses but what sum is payable by her in respect of the award in their favour; she objects to the auditor's report. I was at a loss to understand how or why she considered - as she seemed to do - that the issue of entitlement could be opened up if this action were conjoined with the appeal to which she referred. She referred to no authority to support that proposition. I noted, further, that the defenders did not accept that there was a subsisting appeal to the Supreme Court.

[9] In these circumstances I did not consider that it would be appropriate for me to exercise my discretion so as to grant the pursuer's motion to sist the cause and decided that the only proper exercise of the discretion available to me was to refuse her motion.