Scottish Court of Session Decisions

 FOR

OUTER HOUSE, COURT OF SESSION

[2014] CSOH 134

P732/14

OPINION OF LORD CARLOWAY, the LORD JUSTICE CLERK

In the Petition of

JEAN McGOVERN

Petitioner;

against

THE SCOTTISH MINISTERS

Respondents:

for suspension and interdict

Petitioner:  Mason; Neil Barnes, Glasgow

Respondents:  Ower; Civil Recovery Unit

23 July 2014

Introduction
[1]        The petitioner sought suspension of a decree for removal, dated and extracted respectively on 7 and 21 May 2014, and interdict against the respondents prohibiting them from evicting the petitioner and her daughter from 167 Foresthall Drive, Glasgow.  The petitioner sought interim orders on the basis that she was due to be evicted on 22 July 2014.  Interim orders were refused for the following reasons. 

Background
[2]        The petitioner and the respondents entered a “Joint Minute of Agreement” in settlement of proceedings raised against her by the respondents under Part 5 of the Proceeds of Crime Act 2002.  In essence, it was agreed that a 80.76% pro indiviso share of the property was “recoverable property”, in terms of the 2002 Act, and that the petitioner would remove from the property in order to allow the respondents to take vacant possession on or before 1 July 2014.  In order to effect the substantive terms of the settlement, it was agreed that the respondents would enrol a motion seeking a recovery order under section 266 of the 2002 Act.  The petitioner would not oppose the motion or enter appearance in any proceedings to follow thereon.  The agreement, which was a formal one, was signed by the petitioner personally on 2 May 2014 and registered for preservation and execution in the Books of Council and Session on 7 May 2014.   

[3]        On 30 June 2014, the petitioner sent a document to the respondents stating that she thereby purportedly “resiled” from the Agreement on the basis that “unfair advantage” had been taken of her, that the property was not recoverable in terms of the 2002 Act, and that she wished to have her case dealt with by the court. 

The petitioner’s averments and submissions
[4]        It was averred that the petitioner was “vulnerable”, when she signed the agreement.  She was in custody in HM Prison, Cornton Vale.  It was said that her agreement may not have been “informed”, and may have been obtained in circumstances “prejudicial” to her.  In particular, it was alleged that the petitioner’s solicitor had failed to advise her that she could have her case determined by the court, notwithstanding that she had a prima facie defence to the action for recovery.  The petitioner could demonstrate that the property was purchased by her using legitimate funds as a deposit and by payment of monthly mortgage instalments thereafter.  Consequently, it was said that her eviction would breach the petitioner’s rights under Article 6 of the European Convention.  It would be “unreasonable” in light of the damage that her eviction would cause to the health and welfare of the petitioner and her family.  It was accepted that the Agreement had been signed by the petitioner following advice tendered by her solicitor, who had visited her in prison, that, in light of certain legal authorities, it was the “best thing she could do” and that, if she did not do so, she would lose the entire property.

[5]        During oral submissions, and notwithstanding the absence of supporting averments, the petitioner maintained that the agreement should be reduced on the basis of “material irregularity”.  It was submitted that there were a number of legal bases for reduction, including “mistake”, undue influence and misrepresentation, albeit that no relevant factual or legal bases were advanced in support of any of those headings.  It was averred that:  “Against that background, the petitioner ought to have a remedy available to her by an appeal which she is going to pursue.”  In oral submissions, this became an intention to appeal the “erroneous contract” entered into.  There was no averment in the petition that the petitioner had taken any steps to seek reduction of the agreement or that she intended to do so.

The respondents’ submission
 [6]       The respondents opposed the granting of interim orders on the basis that the petition was incompetent, in the absence of averments of an actionable wrong.  In any event, there was no prima facie case justifying the grant.

[7]        In terms of an Affidavit of the principal solicitor acting for the respondents, the recovery proceedings had begun in October 2010.  The petitioner had been legally represented and, in February 2014, she had sought settlement with the respondents.  Detailed negotiation of the terms of an agreement had followed.  These had involved the petitioner herself.  The terms of the Agreement reflected the value of the property attributable to the deposit and mortgage, the source of which could not be traced by the respondents.  The petitioner had presented no defence to the recovery of the remaining value of the property, as she had failed to address the fact that it had been obtained through mortgage fraud. 

[8]        The petitioner did not seek reduction of the Agreement or the resultant decree for recovery.  The petitioner had not overcome the fundamental difficulty that, by virtue of the recovery order, the property was vested in the trustee for civil recovery.

Decision
[9]        Ultimately, the broad position was that the petitioner was seeking to suspend an extracted decree containing both a recovery order granted in terms of section 266 of the Proceeds of Crime Act 2002 and an extracted decree of removal of the respondent and her family from the property, with a warrant to Officers of Court summarily to eject them.

[10]      It is competent for a party to seek to suspend diligence following upon a decree, albeit the decree itself may not be subject to review by suspension (McCarroll v McKinstery 1923 SC 94, LP (Clyde) at 98; cf Court of Session Act 1988, s 34).  However, if a party is seeking suspension of diligence which follows upon a decree, it is incumbent upon that party to state at least his intention to seek reduction of the decree and to set out the basis in law for such a reduction (Richmond Park Laundry Co v Lawson 1944 SC 445, LP (Normand) at 454).  The purpose of suspension is, of course, merely to preserve the status quo pending a substantive review of the ex facie valid underlying proceedings (ibid; Greenwood v Munde 1957 SLT (notes) 15; Maclaren, Bill Chamber Practice, p 8).  This petitioner does not, however, aver any intention to seek reduction of the decree or, indeed, the Agreement in terms of which it was granted.  There is no basis in law, on the averments, that would entitle the petitioner to reduction following such a review.  Despite the general complaints of amorphous unfairness contained in the averments, there is nothing capable of forming a prima facie case for reduction in the interests of justice (Adair v Colville & Sons 1926 SC (HL) 51, Lord Dunedin at 56).  “Mistake” is not a term of art familiar to Scots law in this area.  There are no relevant averments of a relationship in which undue influence may hold sway.  There is no suggestion of misrepresentation inducing contract other than by the petitioner’s own law agent.  That being so, there is no basis for granting the interim orders sought.  The petitioner’s motion was therefore refused.