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Cite as: [2018] ScotCS CSOH_79, 2018 GWD 27-345, 2019 SCLR 537, [2018] CSOH 79

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OUTER HOUSE, COURT OF SESSION

[2018] CSOH 79

A620/15

OPINION OF LADY WOLFFE

In the cause

AGNES BARR

against

JAMES CASSELS

Pursuer

Defender

25 July 2018

Pursuer: Stevenson (sol adv); Campbell Smith LLP

Defender: Sanders; Allan McDougall

Introduction

[1] The pursuer in this action seeks reduction of a disposition of land amounting to

about 1.4 ha (“the subjects”), by the pursuer in favour of herself and the defender (and the

survivor) dated 10 May 2006 and registered in the General Register of Sasines (“the GRS”)

on 9 June 2006 (“the disposition”).

[2] The subjects disponed by the disposition had formerly been part of the land owned

and farmed by the pursuer’s father, John Logan Barr. The pursuer’s father had previously

disponed the subjects to the pursuer by a disposition dated 3 October 2003 (“the 2003

disposition”) but only recorded in the GRS of even date with the disposition. In

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circumstances I will come to narrate, a new house was built on that parcel of land. It is the

pursuer’s reduction of that disposition in favour of herself and the defender which is the

subject matter of this action.

[3] At the time of the grant of the disposition, the pursuer and defender had been in a

relationship, which had begun several years earlier. The defender, who is about 17 or

18 years older than the pursuer, had been the solicitor to the Barr family for many years. He

had acted for members of the Barr family in relation to a variety of matters, including having

acted for the pursuer in respect of her two divorces.

[4] The matter called before me for a two-week proof. The pleadings in this case are

extensive. The Closed Record extends to some 50 pages. There are averments of other

matters not obviously or directly reflected to the conclusions. For example, there are

averments attacking the propriety of the defender having acted for the pursuer’s father,

John Barr, in relation to the 2003 disposition. (The averment in Articles 7 and 8 of

condescendence and the answers thereto themselves occupy 19 pages of the Record.)

However, John Barr is not a party to these proceedings and there is no conclusion (or plea)

directed to the 2003 disposition. After discussion on the first morning of the proof, it was

agreed that the essential ground for reduction of the disposition was for breach of fiduciary

duty on the part of the defender. In the circumstances described, the defender was acting as

solicitor for the pursuer in relation to the disposition and he was also benefiting as one of the

disponees thereof.

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The pleadings

[5] The pursuer’s first conclusion is for reduction of the disposition. The second

conclusion is for interdict against the defender from selling the land and the third conclusion

seeks payment of £187,500 in lieu of reduction.

[6] The pursuer’s first plea-in-law (as amended on the first day of the proof) is as

follows:

“The pursuer having been induced into executing the disposition condescended

upon as a result of the Defender’s misrepresentations, et separatim his actings

including his breach of fiduciary duty, the disposition dated 10th May 2006 ought to

be reduced.”

The pursuer’s remaining pleas relate to the second and third conclusions.

[7] The defender stated nine pleas-in-law, of which it is necessary only to note his pleas

of prescription (plea 5), personal bar (plea 8) and that, having regard to the 2015 decree, it

was contrary to natural justice to grant any of the conclusions to be granted.

Factual averments

[8] It is necessary to note the following additional matters averred in the pleadings:

1) There is reference to the defender’s action in Paisley Sheriff Court for division

and sale of the subjects (“the defender’s action”). Although the pursuer (who

was called as the defender in that action) was legally represented in those

proceedings, summary decree was granted in favour of the defender on 23 March

2015 for declarator that the subjects be sold and the proceeds divided between

the parties (it being inexpedient to divide the subjects) (“the 2015 decree”). Leave

to appeal against that decree was refused on 22 June 2015.

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2) The pursuer avers that the defender acted as her solicitor in relation to a number

of matters, including her application to change her name, a claim for

maintenance against a former husband, and the framing of a will for her in 2002.

There are also averments of the defender acting as a solicitor for other members

of the pursuer’s family, which it is not necessary to record.

3) The pursuer also avers (in Article 2 of Condescendence) that the defender acted

for the pursuer’s father to obtain the requisite planning permission in respect of

the proposed construction of a house on the subjects. (There was some evidence

that, by reason of the agricultural character of the land this was not

straightforward and that there is a planning condition restricting the class of

persons who may occupy or acquire the subjects (“the planning condition”).

4) On the question of the funding of the construction of the house, the pursuer

avers:

“The Pursuer paid for the costs of construction. The defender, in receipt of

State benefits, was not in any position to contribute towards its construction...

Cash had been given to the Pursuer by the Defender. It was given to her to

do with as she wanted. The Pursuer was able to accumulate enough cash

from the gifts of money made by the Defender so as to use the money

towards funding purchase of building materials for construction of the

house.”

It should be noted that the defender denies this and himself avers that he “paid

for the entire construction costs of the house”. He also avers:

“The defender did not give any cash gifts to the pursuer to do as she pleased

with. As the pursuer is aware, and was aware, these sums were handed over

for the specific purpose of the ongoing construction of the property including

paying tradesmen and paying for materials.”

5) The averments (in Article 5 of Condescendence) concerning the grant of the

disposition are as follows:

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“On or about 10th May 2006, the Defender presented a document to the

pursuer for her signature. The signed document is produced herewith. It is a

disposition of heritable property from the Pursuer to the pursuer and the

Defender. The pursuer asked the Defender what the document was for. She

was told by the Defender that the document would transfer her father’s land

to her. The Pursuer did not read the document. The Pursuer relied upon the

Defender’s explanation of the purpose of the document in adhibiting her

signature to it. At the time of adhibiting her signature, the Pursuer was not

aware of the earlier 2003 deed; nor aware of the true nature of the disposition

to the disposition purportedly conveying title to the Defender and herself.

Unbeknown to the Pursuer, the defender purported to act as solicitor and

agent for himself and the pursuer in the drafting, engrossment, execution and

registration of the conveyancing deeds purportedly giving the defender

nominal title to the pursuer’s home. Morag Hill, the person allegedly having

acted as witness to execution of the deed, was not personally present on the

occasion that the Pursuer’s signature was adhibited to the document.”

(Emphasis added.)

6) The defender’s answer to these averments is as follows. After narrating the

ongoing construction of the house, it is averred:

“The defender reminded the pursuer that the property required to be

transferred into the joint names of the parties being what had been originally

agreed and being, at least in part, the basis on which the defender agreed to

fund the entire construction and fitting out costs. The defender advised the

pursuer that a formal Disposition would require to be signed by her and the

title thereafter registered in joint names. The pursuer fully understood what

required to be done and why it required to be done. The defender further

advised the pursuer that it would be in her interests to discuss the matter

with an independent Solicitor. The pursuer understood this but indicated to

the defender that she neither required to nor wished to seek independent

legal advice. She indicated that she was happy for the property to be in joint

names and fully understood the legal import of granting a Disposition to that

effect as she did.”

There are sundry averments as to the rationale of having a survivorship clause,

essentially because of the disparity in the respective ages of the parties.

7) The defender makes additional averments about the steps taken to advise the

pursuer to obtain separate legal advice. These are as follows:

“In addition to the defender explaining to the pursuer about her obtaining

independent advice the defender instructed the conveyancing solicitor (Allan

Findlay) then employed by the defender (Cassels) to write to the pursuer in

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formal terms fully explaining issues such as obtaining independent advice….

In terms of said letter the pursuer was provided with a copy of said letter to

sign and return and a letter of reply for her to sign and return if she so

wished. The pursuer signed and returned the letter of reply. The pursuer

maintained their position that she did not require independent advice. The

defender went through the terms of the proposed disposition. As the pursuer

is aware the aforementioned Morag Hill witnessed the pursuer’s signature of

the disposition granted by her in favour of the parties. There was no coercion,

fraud, undue influence or duplicity by the defender. The pursuer granted the

disposition voluntarily, knowing what she was signing and its legal

significance qua conveying a share in the property to the defender. The

pursuer did so in the knowledge that parties to the action were building a

home together with a view to a future together and in the knowledge that the

defender was funding the cost of constructing and fitting out the said home.”

Averments of the grounds of reduction

[9] The pursuer’s averments setting out the legal basis of challenge are as follows:

“Cond. 9 As solicitor allegedly acquiring heritable property from his client, the

Defender owed the Pursuer fiduciary duties of care to act in her interests. He was

bound to advise the Pursuer to seek independent legal advice as to the nature of the

transactions in which she was involved. The Pursuer was not advised to consult

another solicitor. She was not told the true nature of documents she had been asked

to sign. The Pursuer relied upon the representations made by the Defender. The

Defender breached his fiduciary duties of care owed to the Pursuer. The Defender

has gained personally from his breach of fiduciary duties. The Pursuer did not

intend to dispone any interest in heritable property to the Defender. Had the

Defender fulfilled his duties of care owed to the Pursuer, the Pursuer would have

taken independent legal advice. With the benefit of independent legal advice the

Pursuer would have been made aware of the true nature of the conveyancing

documents given to her. She would not have disponed a share of her home to the

Defender. In the circumstances, the Defender obtained a material personal benefit

from his actings. In the exercise of the fiduciary duty of care, the Defender (i) ought

to have declined to act for the Defender’s [sic]; (ii) ought to have explained his

reasons for doing so; and (iii) ought to have insisted that the Defender consult and

engage the services of an independent solicitor. In a question with the Pursuer, the

Defender was professionally negligent. No solicitor of ordinary skill and acting with

ordinary care would have acted for the Pursuer in the manner condescended upon.

The said letter from Donald B Reid is referred to for its terms. The Defender’s

averments in answer are denied save in so far as coinciding herewith.”

I do not record the averments anent the 2003 disposition.

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The pursuer’s proof

The pursuer’s evidence

[10] The pursuer described having a number of prior occupations. These included

having been a social work carer, running a business supplying office furniture and as a

nurse. Her current occupation was as a chef in a steakhouse in East Kilbride. She described

having assisted with lambing on the family farm for 30 years but for which, she said, she

was never paid. She said that it was in recognition of that contribution that her father

conveyed the small parcel of land to her by the 2003 disposition. The pursuer first met the

defender when she was 26. He assisted in obtaining maintenance from her first ex-husband.

The defender was the Barr family’s lawyer and other family members went to him on

different legal matters. The defender also assisted the pursuer with her second divorce,

which involved cross actions in Scotland and in North Carolina, and assisted with obtaining

custody of the pursuer’s daughter whom she had had with her second husband.

[11] A deed described as the will of the pursuer was put to the pursuer. The pursuer’s

evidence was that she had never received this. She acknowledged that the signature looked

like hers, although the signature was smoother, but it did not reflect how she formed the

letter “G”. Furthermore, she maintained that she had never instructed a will from the

defender. The only will she had ever made she had written out at the farm and had left with

her parents there.

[12] As to whether or not the pursuer’s father ever expressed an interest in conveying

land, the pursuer’s first response was that “farmers do not give away their land”. At a later

point in her evidence it was her position that her father wished to gift her a parcel of land on

the farm in recognition of work she had done in the past for free. To that end, enquiries

were made to secure the appropriate permissions given its character as agricultural land.

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She and her father discussed the pursuer building a three-bedroom house. This coincided

with the start of her relationship with the defender. The defender offered to assist in

obtaining planning and other permissions. At other points, I understood the pursuer’s

evidence to be that she and her father had talked in the past about her father giving her one-

half of an acre so she could build a bungalow (like her brother had done) She maintained,

however, that she was not aware at that time of her father having given land to her. She

only became aware of that in about 2005. The source of this knowledge she described,

somewhat surprisingly, as “hearsay”. It was only when planning permission was obtained

that she understood that she was free to build a house on the land. As she described it, the

defender took her father to the sunroom in the farmhouse and everything was done in

private. However, she said, she knew she was getting the land and knew she was going to

get a house.

[13] The pursuer explained that in about mid-2002 the defender became friendly with her,

often inviting her out for dinner at a Glasgow Chinese restaurant. Their relationship

progressed and the parties discussed moving in together and getting married. At this point,

the defender was still married to his wife.

[14] Returning to the topic of how many deeds or legal documents the pursuer had

signed (ie and were prepared by the defender), the pursuer was adamant she had only ever

signed one document intending to have legal effect. This was the transfer of the parcel of

land from her father to herself. She maintained that that document began with a passage all

about property laws of the 14th century. It was all “gobbledygook” to her and the defender

just told her to sign the deed. He told her it was all about land law hundreds of years ago

and she would not understand. She signed it, she said, because the defender said it was

transferring the land from her father’s name to her. To try to relate this to some timeframe,

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she estimated this was in about 2006 because the house was newly built at that point. She

maintained that this was to effect the transfer of land from her father to herself “to make the

house legal”.

[15] The disposition, being the deed under reduction, was put to her. She at first

acknowledged that the signature was hers (doing so twice in the first few questions on this

chapter of the evidence). Indeed, when the first several lines of the disposition were read

out to her, the pursuer was quick to say that she could understand this document. She could

not understand the document that she had been given to sign in the past which she had

already referred to in her evidence. When asked why she signed the disposition, she was

adamant that this was not the deed she had signed. Whatever she signed, she had signed it

because she trusted the defender. She confirmed that she did not understand what she had

signed and did not read it. She was unaware what happened to the document she said she

had signed, other than that she had given it to the defender and he had taken it to his office.

At this point objection was taken on the basis that the document containing references to 14th

century property law, and which was the single document the pursuer said she signed,

ought to be produced. The pursuer’s solicitor advocate explained, however, that no such

document was to be produced.

[16] Thereafter the pursuer was asked to explain how her signature appeared on the

disposition, to which she simply replied that she had described the document she had

signed and this disposition was not what she had signed. She repeated that she could

understand the import of the disposition. The other document, which she maintained she

had signed, was more than a few pages, and the reference to the 14th century law was on the

first page. She was unable to explain how her signature came to be on the disposition.

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[17] She was adamant that she had never received any paperwork from the defender, the

only paperwork she had ever received from him were her divorce papers. She had received

no other paperwork. The defender kept everything, including all of the paperwork relating

to the land and the house.

[18] Returning to the topic of her father’s conveyance of some land to her, she repeated

her evidence that this was to reflect the fact that she was never paid for her work but would

take time off from work to come home and help with the lambing.

[19] In relation to the defender’s involvement with the land, this was because she and the

defender were supposed to be starting a new life together; he was the lawyer and

everything she did she put by the defender. Their common expectation was that they would

live together, although not immediately because the defender was still married to his wife.

[20] A number of letters from the defender’s firm, Cassels, were put to her. The first was

a letter dated 14 April 2006 (“the Advice Letter”), which was in the following terms:

“Dear Ms Barr,

1.42 Hectares at Bonnyton Moor Farm Eaglesham

I have been instructed by James Cassels in connection with the transfer of title to the

above area of ground, which is currently owned by yourself.

I am advised that you and Mr Cassels have agreed that the title should be transferred

into YOUR JOINT NAMES AND TO THE SURVIVOR. This effectively means that

on the first death the title to the ground ‘automatically’ passes to the survivor and in

plain English if Mr Cassels were to die first then the title (ownership) automatically

passes to you. It is also the case that if you were to die first that the title would pass

to Mr Cassels. This is known ad [sic] ‘a Destination’ ie on the occurrence of a specific

event (first Death) the titled [sic] is destined to pass to the survivor. It is also a

contract that is entered into between you and in order to change the Destination then

each party will require to consent.

It also means that each of you has a share in the title (ownership) and in the event of

any dispute that cannot be resolved then the ultimate recourse to either of you would

be to make an application to a Court of competent Jurisdiction seeking a decree of

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division and sale of the property. The court could order that the property be sold

and the proceeds of sale divided between you.

The ownership of the buildings erected (or to be erected) on the land is also subject to

the same rules and effectively the buildings become part of the land.

I have prepared a Disposition of the Land (and buildings) which is enclosed.

If it is your intention that that title (ownership) of the Land and buildings be

transferred to your joint names and the survivor I would ask that you sign the deed

at he [sic] place indicated by your pencilled initials and that you complete the date

and place of signing. Your signature should be witnessed by an independent witness

who should also sign and after their signature complete their personal details.

If you require any advice or instruction about signature please phone.

I MUST STRESS TO YOU THAT WHAT IS PROPOSED IS THE TRANSFER OF

OWNERSHIP OF THE LAND AND BUILDINGS FROM YOUR SOLE NAME INTO

THE JOINT NAMES OF YOURSELF AND MR CASSELS AND THE SURVIVOR.

You must appreciate that once done the title cannot then be Transferred back

without the consent of you both.

I would strongly urge that you take INDEPENDENT ADVICE as to the steps that

you are about to take BEFORE SIGNING the Disposition.

In the vent [sic] that you are satisfied that you do not require that advice I would ask

that you sign the enclosed letter and again have your signature witnessed in order

that I can be sure of your receipt of this letter and your confirmation that you do not

wish independent advice before signing.

Nothing in this letter is intended as advice to you other than to illustrate in broad

terms the nature of the proposed transaction and it’s effect. You should take

independent advice if in any doubt.”

[21] The pursuer was quick to assert that she had never seen this document, asking

rhetorically “why would I give the defender half my land?” She had never received this

letter.

[22] A second letter was put to her also dated 14 April 2006 (“the Waiver letter”), which

bore to have been sent undercover of the Advice letter. This was in the following terms:

“Dear Mr Findlay

1.42 Hectares at Bonnyton Moor Farm, Eaglesham

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I refer to you letter of 14th April 2006 a copy of which is attached and I confirm that I

have read and understand the terms thereof.

I have decided that I wish to proceed to execute the disposition in favour of Myself

and James M Cassels and to the survivor of us. I acknowledge that I have been

advised to seek independent advice as to the nature and effect of granting the said

disposition before signing but having had that advise [sic] I have declined to take

independent advice.

The executed Disposition is attached hereto.”

[23] The pre-typed signature was in the name of “Agnes Y L Barr”, whereas the signature

appended was “Agnes Fillers”. (This was one of the pursuer’s married names.) Her first

response was to say that she didn’t know she was getting 1.4 ha. She accepted that this

appeared to be her signature but she had not signed this letter. She could not explain how

her signature was on it, but she repeated that she had not signed this letter. Nor had she

received either of these letters.

[24] The pursuer was next asked some questions to elicit how she became aware of the

disposition. So far as the pursuer could recall, she and her daughter had moved into the

house in about October 2006. This was three or four months before the defender moved in

because he first had to buy his wife a house. It is not necessary to go into the details of the

breakdown of the parties’ relationship. The pursuer recalled spending two Christmases

with the defender in the house. It was in the course of an argument with him that she said

the defender told her that she could not put the defender out because he owned one half of

the house. She described being shocked. She went to four or five lawyers before any lawyer

would accept her case, the reason being that the defender had given them all business in

Glasgow.

[25] Ultimately, she instructed Lynn Collingham of T C Young. Lynn Collingham’s

advice was that as the pursuer had signed the document (ie the disposition) the defender

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was entitled to one-half of the house. She maintained in her oral evidence that it had never

been her intention to give or convey one half of the subjects to the defender.

[26] In relation to the parties’ respective financial contributions, the pursuer accepted that

the defender had “paid for a lot of stuff”. This was because he wanted to be with the

pursuer, to leave his wife and start a new life with the pursuer and her daughter. She

explained that the defender would give money for her to treat herself but she never touched

this. She put it away. This was years before, when she and the defender had started dating

and going to Chinese restaurants. He often gave her money in an envelope and, if it was not

money, it was jewellery. This was every couple of weeks or months, and the amounts

varied from £1000, £5000, to £10,000 at a time. Her position was that he had given her this

money unconditionally, explaining to her that he could not use the money and she was to

treat herself, but the pursuer never did. She used these monies to pay for the work on the

house and to pay the men. She stated that in addition to the defender giving her a lot of

money he had also given her his limited-edition Saab.

The pursuer’s cross-examination

[27] The pursuer’s relationship with the defender had begun in about 2002 or 2003 and

ended acrimoniously in about 2007. She was not sure of the exact dates.

[28] In relation to some of her work history, she worked on the farm from about 2002

until she hurt her back. This was probably after she had moved into the house in 2006. At

that point the defender would not give her any money to look after the house or anything;

she described the defender having changed after she had moved into the house. She sought

money from her mum. She did not go back to work until about 2011.

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[29] She was asked questions under reference to an application for legal aid made in

August 2002. She accepted the entries recording that she had no income, no capital, and that

she was in receipt of income support were incorrect. She accepted that she had undertaken

no paid employment between 2002 and 2005. In the light of her earlier evidence, about

receiving large cash sums from the defender at this time, she accepted that she should have

come off income support. She had gone on income support in about 2001, when she came

back from the United States, after divorcing her second husband. She explained the

defender told her she could stay on income support because he had paid “a lot of” taxes.

After a warning on incrimination, it was put to the pursuer that she had engaged in benefit

fraud. She replied that she did not deny that what she did was wrong in claiming benefit

support. She accepted that she knew she should not have claimed it. So far as she could

recall, she had come off income support when she had moved into the house (ie around

October 2006).

[30] The cover letter (dated 26 August 2002) to a will was put to the pursuer. She

maintained she had not received this letter. In response to a question as to whether the will

had been manufactured, she said yes, and became somewhat combative asking why would

she draw up a will having just returned from the United States. She maintained throughout

cross-examination that she had not signed the will. She accepted that the signature

appearing at the foot of the page appeared to be her signature, but it was too smooth to be

her signature. She was adamant that she had never signed the will and that this was not her

signature. It was a forgery.

[31] Each term of the will was put to the pursuer and, apart from stating that she had

never appointed the defender as her executor, she otherwise accepted that all of the

provisions reflected her testamentary intentions. These were to bequeath her jewellery to

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her daughter and to divide the residue of her estate among all three of her children. While it

matched her testamentary intentions, she explained that the defender “knew her”. She had

never asked him to frame a will. At this point the passage in the pursuer’s pleadings

averring that the defender had acted for her in the drafting of the will, quoted at

paragraph [9(2)] above, was put to her but she simply repeated her evidence that she had

written out a will and left it in her father’s safe. She had made her own will and written it

out. Her signature on this will was a forgery. The signature purporting to be hers was too

smooth.

[32] The cover letter to the disposition and the disposition was put to her. When asked

whose signature appeared at the foot of the disposition, she said “it looks like mine” but

maintained that Morag Hill never witnessed her sign anything at the farm. She repeated

this and added that this was because it was a couple of days later that Morag Hill had

appended her own signature as a witness. She maintained that Morag Hill had signed

something as a witness when the pursuer was not there. The pursuer’s position was that

Morag Hill had not witnessed her signature on the disposition. The pursuer had signed this

in her house and dropped it off at Morag Hill’s house a few days later. (This evidence was

difficult to follow: it was suggestive that the pursuer had signed the disposition and it was

inconsistent with the main thrust of her evidence in chief.)

[33] The terms of the two letters from April 2006 (ie the Advice letter and the Waiver

letter) were put to her and she confirmed that she had never received these. Anything that

had been discussed regarding the land had taken place between the defender and her father.

She repeated her evidence that she did not know about the 1.4 ha. She knew the author of

the letters, Allan Findlay, but repeatedly stated that she would never have given away her

own land. She accepted the terms of these letters were clear and easily understood and that

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they recommended that she take legal advice. The Advice letter sounded fine to her, but she

repeated she had never received this letter. The terms of the Waiver letter were put to her

and she again repeated she had not seen this letter about the land; the signature looked like

her signature but she had not signed this letter and therefore the signature on it was also a

forgery. If it were Mr Findlay’s evidence that he had sent these letters out or received the

Advice letter back, he was either mistaken or lying. She was the one telling truth.

[34] Several questions were put to her that it was not unusual for a house to go in joint

names when a couple moved in together, but the pursuer maintained she would never give

her land away. She accepted that they would be starting a new life and that at the time the

parties intended to move in together.

[35] A series of questions were asked of the pursuer about her communications with, and

advice from, Lynn Collingham of T C Young and also under reference to a number of file

notes in those agents’ file. The pursuer confirmed that the matter on which she had sought

advice from Lynn Collingham had been about signing a document entitling the defender to

one-half the house and that this is what she had told Lynn Collingham at the time.

[36] The disposition was again put to her and she repeated her evidence that she had not

signed the disposition but had signed a deed containing passages about 14th century land

laws. When pressed as to whether or not it was her signature on the disposition, she said

“it’s my signature but it is not mine”. She appeared then to confirm that this was her

signature but that the paper she had signed was all about the 14th century property laws.

The first two pages of that document were all about old land law. She confirmed she had

asked advice from Lynn Collingham because she had signed a deed entitling the defender to

half of the house.

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[37] At this point the closed record in an action at the instance of the pursuer against the

defender in Paisley Sheriff Court in 2009 was put to her. After a series of questions under

references to certain passages in that record, which I need not set out, she confirmed that she

knew by 2009 that the defender asserted that he was entitled to one-half of the subjects. She

also accepted that, by then, she was very concerned about her situation generally and that in

her view the defender had tricked her out of one-half of the house. It was in order to have

this corrected that she had contacted solicitors. She gave evidence about an incident where

the defender was seen walking about the house with a new girlfriend as if showing it for

sale, which had worried her. She was worried that the defender would take the house from

her.

[38] There then followed a chapter of evidence based on the recovered solicitor’s file of

T C Young, the agents whom the pursuer instructed on a number of matters. A number of

file notes recording calls from, or advice to, the pursuer were put to her. Some of these

entries also disclosed the pursuer being concerned about, and receiving advice concerning, a

proposed action at the instance of her father against her or to challenge the 2003 disposition.

For example, there was an entry in September 2010 about this and the pursuer confirmed

that this was a live dispute at that time. She accepted that her dispute with the defender was

simply part of the “bigger picture of events” (as it was put in Lynn Collingham’s letter to the

pursuer dated 20 September 2010), about which she was receiving legal advice from Lynn

Collingham. The pursuer was affected by two disputes: one involving her father against the

defender about the 2003 disposition and the transfer of land to her; and the second being

the defender’s action. She had not opposed the latter action, because Lynn Collingham’s

advice was that, because the pursuer had signed the disposition, the house had to be sold. In

relation to the first dispute, she understood from Lynn Collingham that her father was

Page 18 ⇓

trying to get the house back. If that happened, ie if her father’s disposition to her were

reduced (ie the 2003 disposition), then the disposition by the pursuer in favour of herself

and the defender would also fall, with the consequence that the pursuer would lose

everything.

[39] A file note recording a meeting between the pursuer and Lynn Collingham on

3 August 2012 was put to the pursuer. This concerned the defender’s action against her (for

division and sale of the subjects). After narrating the recent procedure in that case, the file

note recorded the following:

“Agnes saying that she [ie the pursuer] is not necessarily opposed to the sale of the

property in the future but only when [the pursuer’s daughter] has completed her

education.

Agnes brought with her a large amount of paperwork that had been passed to her by

her Dad and asked that I peruse it as it may be relevant to her case. She saying that

she did not know what she was signing when she was presented with the disposition

by [the defender] but advising that in my view that is not a defence to the fact that

she signed a disposition. Explaining that if I passed her over something during our

meeting to sign today, and she signed it without reading it, whilst as a solicitor I

could be criticised professionally for not explaining the content and meaning of the

Deed, the Law generally is that if you sign something without reading it, you have to

accept the consequences if you are bound by what you have signed. She said she

appreciated that.” (Emphasis added.)

[40] Reference was then made to another dispute, between the pursuer and her father,

and the relative file note entries between August and October 2012. In substance they

recorded that the defender’s father, John Barr, wanted to get the subjects back from the

pursuer. If this happened, the title to the subjects conferred by the disposition on inter alia

the pursuer would also fall. The entries record consideration of whether or not this should

be disclosed to the defender in the context of the defender’s action.

[41] A further series of questions followed, to the effect that the pursuer was seeking an

assurance from her father that, if his action was successful, she would still have a roof over

Page 19 ⇓

her head. (Other entries, some dating from January 2011, were put to her.) She had fallen

out with her father at this time. Ultimately, however, she never obtained sufficient

reassurance. In August 2012, Lynn Collingham’s advice was, essentially, “better the devil

you know”, which is why the pursuer had decided to side with the defender against her

father at that time.

[42] It was put to her that at that time the pursuer had two options: to back the defender

or to back her father. She backed the defender, she said, because she would be getting half

the house and she had done so on the advice of Lynn Collingham. This was about seven

years ago. It was put to her that she did this even although, in her evidence, she knew the

defender had “done” her. She accepted all of this. Even back in 2011, she was reluctant to

raise an action against the defender in relation to the subjects. She accepted that at that time

one option was to go against the defender. She ultimately permitted the 2015 decree to pass

against her in the defender’s action. It was put to her that she had made a tactical decision

to go with the defender, otherwise if she supported her father she would lose everything.

She accepted she understood this at this time. And she accepted she took the view at that

time that it was better to keep half (ie of the house) than to lose it all. She also accepted that

she has known that she had “sustained a loss” arising from the defender’s conduct more

than five years before the raising of the proceedings.

[43] There was further evidence about the pursuer no longer being on speaking terms

with her parents and siblings, notwithstanding that she still lived at the subjects. She

asserted that her father was lying if he said he had paid for the pursuer’s house and was

“blatantly lying” as to what he had done for her. If he had asserted that he had paid for the

house and for the attic to be done, this was a lie. It was put to her that her father was a liar

to which she replied that this was not completely the case, but he “bent the truth”.

Page 20 ⇓

[44] A number of further file note entries were put to her. She maintained she was

always told she would be better off with the defender than with her father. She accepted

that when she was told “to consider her battles” that this accurately recorded the discussion.

[45] There was no re-examination of the pursuer.

The pursuer’s expert evidence: Donald Reid

Examination in chief

[46] The pursuer’s second witness was her expert witness, Donald Reid. He was a

solicitor in private practice with Mitchels Roberton in Glasgow. He had been a partner or

(latterly) a director since 1975. His specialism was in commercial and domestic property,

but he also had a wide range of dealings as a family solicitor. He had given expert evidence

in court many times. He had contributed chapters to two books of essays on property-

related topics; published articles in the Journal of the Law Society of Scotland and had

served as a member of the property committee of the Law Society of Scotland.

[47] He had produced an expert report (lodged at 6/275) which he adopted. He had been

supplied with a bundle of papers and, after an overnight break, these were duly lodged in

the process. (To facilitate progress in the proof, a witness for the defender was interposed,

namely Allan Findlay. For convenience I note his evidence below.)

[48] When his evidence resumed the next day, Mr Reid confirmed that he had had regard

to the bundle of materials supplied to him with the letter of instruction. Having regard to

the live issue in these proceedings, the relevant part of his report concerned his answer to

question two (about the disposition). I need not record the first question and the answer he

provided to it (which related to the 2003 disposition). So far as material, the passages of his

report and his answer to question two are as follows:

Page 21 ⇓

“I begin by addressing the point on the hypothesis (which was not the fact) that [the

defender] and [the pursuer] were not in a personal relationship in 2006. [The

defender] was thus advising [the pursuer] on making over to [the defender] half of a

property [the pursuer] owned. What possibly could the reason be for such a

transaction, absent any personal relationship? I see two possibilities. One that [the

pursuer] had simply formed an affection or liking or sympathy towards [the

defender] and wanted to give him a gift. That takes us straight back to the fiduciary

duty referred to above obliging [the defender] to steer wholly clear of any

involvement and direct [the pursuer] to independent advice. The other is that the

proposed conveyance was not truly a gift but an onerous consideration for services

or goods or financial value being offered to equivalent value by [the defender] to [the

pursuer]. In this regard [the defender] does point to the language of the 2006 deed

which narrates ‘certain good and onerous causes and considerations’ and has offered

the explanation that [the defender] had personally provided the funds for the

construction of a house on the subjects. I can understand this response but I do not

consider it has any exonerating effect for [the defender] even if, continuing the

hypothesis, his involvement with [the pursuer] was not personal but purely

commercial. This is because I consider the fiduciary duty remained paramount even

where no personal relationship was present. Apart from that, if the deed truly

represented a commercial deal then [the defender] was hopelessly conflicted: a

solicitor advising [the pursuer], and [the pursuer] alone, would give her very clear

and strong advice to be satisfied that there was, at least, a reasonable vouched

equivalence between the value passing to [the defender] and the costs incurred by

him on the project.

Next I ask whether the fact that [the pursuer] and [the defender] were in a personal

relationship in 2006 goes any way to reducing or mitigating [the defender’s] duty.

After all, it might be said, a gift of property to a solicitor by some loved one such as,

say, a spouse or a parent, should surely permit a more ‘relaxed’ approach to rule

observance. I do not accept this. There may well be incidences out there where just

such a relaxed approach has been taken without adverse result. That is as may be

but it is my opinion that any solicitor so proceeding is thereby taking upon himself

accountability for anything subsequently going wrong or being challenged. The

practice, if it does occur, may be more understandable but it is not thereby more

excusable. It simply cannot be condoned.

That leaves [the defender] with only one more card to play, namely the letter of

advice Mr Findlay of his firm sent to [the pursuer] dated 14 April 2006 and the letter

declining separate advice signed by [the pursuer], also dated 14 April 2006,

addressed to Mr Findlay. Mr Findlay’s letter strongly, indeed perhaps stridently,

advises [the pursuer] to take independent advice but invites her, if she does not wish

to do so, to sign a letter confirming. [The pursuer] took the latter option but I do not

consider this was sufficient to validate or homologate [the defender’s] actions. In my

opinion the circumstances, involving as they did substantial benefit flowing to [the

defender] personally, were wholly beyond [the defender] acting at all for [the

pursuer], even if she declined his advice to go elsewhere. He should have insisted

she did so as the only proper course. But of course [the pursuer] denies having

Page 22 ⇓

received the letter or signed the declining letter and if her testimony in this regard

prevails then [the defender] is left, again, in a parlous position.

The relevant guide as to proper professional practice in these respects pertaining at

the time was the Code of Conduct issued by the Law Society of Scotland in 2002. If

so required I could extrapolate specific provisions which bear out my remarks as

above.

I did note certain ‘oddities’ surrounding these letters of 14 April 2006:

 Mr Findlay’s letter states that it encloses the Disposition and invites [the

pursuer] to sign it. This did not happen because the actual Disposition was not

purportedly signed until 10 May 2006.

 The declining letter from [the pursuer] states that the executed Disposition is

enclosed, which it wasn’t.

 [the pursuer] signs with a surname other than Barr. She signed ‘Barr’ on the

actual purported Disposition.

 Neither Mr Findlay nor [the defender] appears to have picked up on these

oddities.

[…]

Conclusions

It is my opinion that:

[…]

4. Even absent any relationship with [the pursuer], [the defender] breached his

fiduciary duty to her in acting for both [the pursuer] and himself in relation to

the 2006 Disposition and in not insisting she get independent advice. This was

professional misconduct. It was also negligence against the Hunter v Hanley test.

5. Given that there was a relationship my conclusions at 4 apply a fortiori or at any

rate the existence of the relationship has no exonerating effect.

6. The letters of 14 April 2006, if found to be valid, do not of themselves exonerate

[the defender].”

[49] A series of somewhat general questions were put to Mr Reid, but he was,

understandably, anxious to answer more focused questions by reference to specific passages

in his report.

[50] Mr Reid was asked to explain how the Hunter v Hanley test applied to a breach of

fiduciary duty. Mr Reid referred to the several legs of the Hunter v Hanley test. In his view,

Page 23 ⇓

the normal course had not been followed and the deviation from the norm here had been the

decision to invite the pursuer to obtain separate legal advice but not to insist that she do so.

In his view, no solicitor of ordinary skill and care would have failed to do so. What the

defender should have done was to insist upon the pursuer getting independent legal advice.

[51] There followed a number of general questions about the effect of delivery of a

disposition which, until recorded, conferred a personal right but not a real right of

ownership. In the circumstances where a solicitor acted for both the disponer and the

disponee, delivery to the latter could at least be inferred from the act of presentation of the

deed at the GRS for registration. In the absence of that obvious step, the solicitor was

required to take instructions about delivery. While he noted the gap of 2 ½ years between

the signing of the 2003 deed and its recording in the GRS in 2006, he did not regard this as

particularly relevant.

[52] Certain passages in the report obtained from the defender’s expert, Mr Macreath,

were put to Mr Reid for comment. To the extent that they differed it was, essentially, on

whether or not the defender should have insisted upon the pursuer obtaining separate legal

advice (as Mr Reid maintained) or whether it sufficed to advise her to do so (as Mr Macreath

maintained). Mr Reid stood by his own conclusion, although he could follow Mr Macreath’s

reasoning.

Cross-examination of Mr Reid

[53] Mr Reid fairly acknowledged that Mr Macreath had gained a “justifiable reputation”

in the field of regulatory and disciplinary matters. Mr Reid accepted that he had never

represented a solicitor before the Scottish Solicitors Disciplinary Tribunal (the “SSDT”). He

also accepted that, as at 2006, he had “relatively little” work involving solicitors’ disciplinary

Page 24 ⇓

issues. He also accepted that, generally, the profession had become subject to more

regulation in later years than less, and that the rules about professional ethics had become

more developed.

[54] He was asked a number of questions about the documentation supplied to him with

the letter of instruction. He had read these at the time but, if asked whether he had these

specifically in his mind, he would refer to any discussion in his expert report. His

understanding of the background was that the land had initially been owned by the

pursuer’s father; that at some point a dwelling house had been built and which was a new-

build property. He also understood the sequence of transfers to be from the pursuer’s father

to the pursuer, and thereafter a grant by the pursuer to herself and the defender. His

general recollection was that the land had been funded or contributed by the pursuer’s

father. A passage from other proceedings was put to Mr Reid, containing an averment on

behalf of the pursuer that she had paid the whole costs of construction. Mr Reid fairly

accepted that he could not now see what consequence or thought ran through his mind

when he read that, but he did recall also reading documents with other assertions. He

accepted that his general impression had been of a solicitor abusing his position and getting

one-half the subjects for nothing, but he refrained from being judgemental in his report. He

confirmed that it was his general impression that the defender had become a co-proprietor

of the subjects for no consideration.

[55] Under reference to the disposition, he confirmed that the document was the

disposition in its entirety as it contained no plan. It comprised three pages. He confirmed it

had never been suggested to him that this was part only of a document. He also confirmed

that it had never been suggested to him that the pursuer had not signed this disposition. So

far as he recalled, the suggestion was that the pursuer did not know what she was signing,

Page 25 ⇓

but that she had signed it. He did not think it had ever been suggested to him that the

pursuer had not signed the disposition.

[56] Mr Reid also confirmed that the warrant for registration, which was signed, would

be contained at the bottom of the last page of the disposition. It appeared here on page 3 of

the disposition. He also confirmed that it had never been suggested to him that the

pursuer’s signature on the disposition was a forgery.

[57] Under reference to the Advice and Waiver letters of April 2006, he confirmed that

they were clear and unambiguous in their terms. Nonetheless, his position was that it did

not suffice to send these letters to discharge any fiduciary duty owed at the time. He

resisted the proposition that he was applying a standard as at 2018 retrospectively. His view

was based on the reality at the time and what was contained in the Solicitor’s Code of

Conduct of 2002 (“the 2002 Code”).

[58] A copy of a SSDT decision was put to him. While he was aware of this he had not

studied its terms.

[59] A passage from the 2002 Code was put to him. Under the heading “the Interests of

the Client”, the following passage appears:

“Where solicitors are consulted about matters in which they have a personal or

financial interest the position should be made clear to the clients and where

appropriate solicitors should insist that the clients consult other solicitors. For

example, neither a solicitor, nor a partner of that solicitor, is generally permitted to

prepare a will for a client where the solicitor is to receive a significant legacy or share

of the estate.” (Emphasis added.)

He accepted that the use of the qualification “where appropriate” was significant. The

difference between him and Mr Macreath was that, in Mr Reid’s view, the Advice letter did

not suffice.

Page 26 ⇓

Re-examination of Mr Reid

[60] A passage from the 2002 Code, just quoted, was put to him. He accepted the

proposition that the 2002 Code did not suggest an absolute requirement that in all

circumstances a solicitor must insist on separate representation. He confirmed that it was

his evidence that the defender should have insisted that the pursuer got separate advice.

This was not based on the 2002 Code; or perhaps only partly so, but also on his own reading

of the situation. This was his gloss on the phrase “where appropriate”. This was one

instance where, in his view, the defender should have insisted on the pursuer obtaining

separate legal advice. He went further and suggested that the example in this case was

stronger than the example in the 2002 Code of a will. That will was revocable whereas the

gift of land by disposition was an irrevocable act.

[61] Given Mr Reid’s emphasis on the characterisation in his last answer of the

disposition as “a gift”, he was asked to express a view on the hypothesis that the defender

contributed “a significant amount” to the construction of the house, and whether that would

change his opinion. He confirmed that it might, although it is fair to record he was

uncomfortable considering the hypothesis. If there were still a question of an undervalue,

he remained of the view that there was no question but that separate representation must be

insisted upon. If, however, there had been full value given to the granter (which had been

vouched), then perhaps it was more for the court to consider the question of whether or not

the solicitor in that circumstance should be exonerated. When pressed as to the source of his

inflexible rule, standing the terms in which the 2002 Code was expressed, he replied that

even if the 2002 Code had not been there, he would still ask if there had been full

contribution or equivalent to the value of the property passing. He would regard that as an

exception to his inflexible rule and, as I understood his evidence, would be prepared to

Page 27 ⇓

accept a solicitor proceeding on the basis of the Advice and Waiver letters would not be

acting inappropriately. He would be ready, in those circumstances, to accept that the

solicitor had discharged his duty, though he emphasised the need for vouching of the value.

[62] As the pursuer’s last witness was not available until the beginning of the second

week of the proof, counsel agreed to interpose the defender. I record his evidence below.

David Donnachie

The J&E Shepherd valuation

[63] The pursuer’s last witness was David Donnachie, an associate chartered surveyor

with the firm J&E Shepherd. He had prepared a valuation of the subjects in October 2016

(“the valuation”). In brief, Mr Donnachie had prepared a report providing the market

valuation of the subjects, their reinstatement value, and their value taking into account the

restriction imposed by the planning condition. The reinstatement value was stated at

£545,000. The market value with no planning condition restriction was stated as £750,000.

However, the effect of the planning condition reduced the market value by half, to the figure

of £375,000. The valuation also contained a statement that it would be “extremely unlikely”

for a lender to offer a mortgage over the subjects for so long as the planning condition was

in place.

Examination in chief

[64] Mr Donnachie was a chartered surveyor and had been a full member of the RICS

since 1999. He had been in practice since that date. He was employed by J&E Shepherd in

East Kilbride. His experience was in the valuation of all types of residential properties

including in East Kilbride and in the surrounding areas. He adopted his report, the salient

Page 28 ⇓

features of which I have recorded above. He had undertaken his valuation of the subjects

for the purposes of ascertaining its market value by considering the size and location of the

house, its condition, and comparing it with other similar semi – rural properties of

comparable sizes. In his view, the value of the subjects was the same in 2006 as in 2016.

Cross-examination

[65] He accepted that East Kilbride was a built-up area, but he also had experience in

rural properties around East Kilbride and similar to the subjects. He accepted that this was

only a valuation and not a detailed inspection; this was what was instructed. He was

pressed as to his valuation of the subjects as at 2006. He explained that it was not a question

of no movement in the market for 10 years. Rather, there had been a drop in value from

2008 which continued until 2012. There was then an uplift in the market from 2012 to 2016.

As a consequence of this drop and rise in the market, the valuation as at 2016 was the same

as 10 years previously. He had used six or seven similar properties by way of comparators

in coming to the market value of the subjects. He accepted that these were not recorded in

terms in the valuation but he had this information on file.

[66] He had certain aerial photographs put to him and readily described the area on

which the subjects were located as agricultural land. He accepted that if one obtained

planning permission to build on agricultural land it would increase its value. He was quick

to state that he did not get involved professionally in valuing agricultural land. He

volunteered that he had no knowledge or experience in valuing agricultural land. If the firm

received such instructions these would be passed to an agricultural surveyor. He confirmed

that agricultural land with planning permission was worth more than agricultural land

Page 29 ⇓

without planning permission, though he could not say what by what factor that difference

would be.

[67] In relation to the subjects, he agreed it was a large house with an area of

approximately 340 m², and that this would push the value of the house up. He was again

pushed to estimate the increase in value of the land with planning permission and the

house. He was patently reluctant to do so and gave a very rough estimate, as I understood

him, that the land value would be around a third of the value of the house. He was anxious

to stress that this was a “very rough” estimate; that J&E Shepherd had specialists dealing

with development value and he was not involved in that kind of work.

[68] He confirmed the reinstatement value and that this was based on the floor area, age

of construction of the house and type of materials. It was a new house built of conventional

materials, namely a timber frame, built in a modern style. He was challenged on the basis

that the effect of the planning condition would reduce the value. He resisted this, explaining

that it was the price one would achieve with such a planning restriction. He accepted he

was not a planning expert, although he knew the implications of having a planning

restriction on the house such as that contained in the planning condition.

[69] Mr Donnachie was the last witness led on behalf of of the pursuer and the pursuer’s

proof was closed.

The defender’s proof

The defender’s evidence

Evidence in chief

[70] The defender explained he had been a solicitor in practice since 1979. Before then he

had studied architecture for two years and worked at Glasgow School of Art and the Royal

Page 30 ⇓

College of Technology. He then joined the police, working most of his time in CID. He left

the police to undertake a law degree and a law apprenticeship. His main area of work was

in the criminal courts but he also undertook wills and powers of attorney. As at 2002, he

was in practice on his own and at some point thereafter took on Mr Findlay as an employee.

He confirmed he acted for Mr Barr and other members of the Barr family over the years in a

variety of matters.

[71] He was then asked about a curious episode occurring at the end of a commission to

take the evidence of the pursuer’s parents earlier this year. Notwithstanding that Mr Barr’s

evidence about the defender had been uncomplimentary, Mr Barr approached the defender

after the commission; he fumbled in his pocket for something and told the defender that he

needed his help with a matter. The defender explained that he could not talk to or deal with

Mr Barr. The defender left the courtroom where the commission had taken place but

Mr Barr pursued him outside. Mr Barr repeated his request for the defender’s assistance.

The defender was very surprised. He had explained that he, the defender, could not help

Mr Barr and that Mr Barr needed to speak to other solicitors.

[72] As at 2002 he was often up at the farm, probably two or three times a week and

sometimes at the weekends. He and the members of the Barr family were on very friendly

terms and he was treated as a member of the family. He dined with them, socialised with

them and was invited to weddings and birthday parties.

[73] He also confirmed having acted previously for the pursuer in relation to her

divorces. He confirmed that there was a slow-developing relationship between him and the

pursuer from about 2002 or 2003. There had come a point when the two of them had

discussed living together. He thought that maybe that point had come in about 2003 or

2004. Initially, the pursuer said she did not want to stay on the farm or near the farm, but

Page 31 ⇓

then things changed. After that point, she and the defender had discussed having a house

built on the farm. He was asked about the size of the house and he explained that the plot of

ground was part of Mr Barr’s farm. Mr Barr had indicated to the defender that he would

give him and the pursuer several acres to build a house on the farm. The size of the house

had not really been discussed between the defender and Mr Barr.

[74] The defender confirmed he had funded the building of the house. It was funded in

the following manner. He and the pursuer were in a close relationship and were going to

build or buy a house. The defender had quite a lot of money and he gave the pursuer a lot

of cash. He agreed with her evidence on this point. However, he gave her cash to hold. He

did so because, he explained, he lived in a remote house whereas the Barr’s farm had a safe

and dogs and was a safer place for the cash. At this point he was close to and trusted by the

Barr family. At this time the pursuer was on income support and so could not fund any

construction costs of the house. The land had initially been provided by Mr Barr and a

conveyance had been entered into by him in favour of the pursuer in about 2003.

[75] Turning to the disposition, he confirmed this had been prepared by Allan Findlay. It

had not been prepared by him personally. He also confirmed that the three pages of the

production comprised the whole of the disposition. No pages were missing. No pages had

been removed. He confirmed the testing clause and that the signature appended at the

bottom of the last page was the pursuer’s signature. He was asked if he or anyone else had

forged or transposed the pursuer’s signature onto the disposition, a proposition he rejected.

He had no reason to do so.

[76] He was asked about the will and whether he had forged the pursuer’s signature on

that deed. Again, he rejected that proposition with alacrity. If the pursuer had suggested

Page 32 ⇓

that the will was forged, or that she had never instructed him to prepare one, she was

mistaken or lying.

[77] He explained the genesis of the Advice and Waiver letters. He had asked Allan

Findlay, one of his employees at the time, to write to the pursuer. He asked him to send

clear letters to let her know that she was entering into a transfer of land and that she was

made fully aware of what she was doing. Allan Findlay did these and typed these letters on

his own computer. The defender asked him to do this because it was a personal matter and

he did not wish his staff or the typists to know his business. He wished to keep it

confidential. He confirmed that it was within his knowledge that she had received these

letters because she had spoken to him about them. He had no doubt about this. And he had

no doubt that these had been prepared and sent by Allan Findlay. This had all occurred at

the point where the house was under construction. There were good relations between him

and pursuer at that time. He confirmed he had nothing to do with the registration of the

disposition and that this all would have been done by Allan Findlay.

[78] In relation to a solicitor acting for the client with whom he was in an intimate

relationship, he felt at the time that it was safe to act because of all of his input into the house

and funding for it. He acknowledged he had had some concerns, given Allan Findlay’s

involvement. He explained it was a practical decision. He had just come back from

Australia before these letters were sent. The pursuer had asked him for money to keep

things going and he wished Allan Findlay to do the conveyancing. Meantime, the defender

was busy; he was on a duty week at the sheriff court and he simply asked Allan Findlay to

proceed. He had taken the view that something had to be done to protect the pursuer’s

position. He had spoken to her and her father, as he was at the farm, but the pursuer had

Page 33 ⇓

point-blank refused to go to another solicitor. He thought to himself: I must put this in

writing from an independent person, ie Mr Findlay, and not from his own pen.

[79] It was put to him that Mr Reid was critical of his conduct and that the defender

should have insisted the pursuer obtain separate representation. So far as the defender

could recall, he did insist but she refused. This was not a matter that had come out of the

blue; he and the pursuer had talked about this before construction of the house had started.

He had spoken to the pursuer and the house was to be in joint names. She had received the

Advice and Waiver letters from Allan Findlay.

[80] It was put to him that the pursuer did not know what she was signing. The defender

rejected this, explaining she knew exactly what was happening and what was being asked of

her. He repeated that she had told him she had received these letters. He did not know if

she had gone for other help or independent advice. The Barrs were not a family who were

strangers in dealing with solicitors.

[81] In relation to the 2003 disposition (from Mr Barr to the pursuer), the defender

confirmed he had acted. He explained that at that time Mr Barr wanted the pursuer and her

family out of the farmhouse; he wanted peace and quiet in his home. He believed that in

conveying some land to her this would get her out of the farmhouse. This was at his behest.

He confirmed that as his relationship developed with the pursuer, Mr Barr was aware of this

and was happy with this.

[82] He confirmed that once the house was finished, the pursuer had moved in several

months before he had, sometime in 2006. He also confirmed that latterly there had been a

deterioration in the parties’ relationship. This was later than the pursuer suggested. In his

evidence, in about July or August 2009, the pursuer had left the house with her furniture

and chickens. He had stayed on in the house. It was his only home. The pursuer had never

Page 34 ⇓

expressed horror at the notion that he was the co-owner of the subjects. He remained there

until the pursuer broke into the house, at which point he couldn’t return and had moved in

with his sister, where he remained.

[83] He explained the circumstances that led him eventually to raise his own action,

resulting in the 2015 decree in his favour. Once the defender’s action had been raised, he

had given an undertaking not to sell the subjects until this action was finished, which meant

a further three years during which he was unable to sell the subjects.

Cross-examination of the defender

[84] The defender was challenged on his evidence that Mr Barr had wanted to give him

and the pursuer land. The defender confirmed that Mr Barr knew he was in a relationship

with the pursuer, that he had said this and that Mr Barr had expressed his desire to give

some property to them. The pursuer had not been present. Mr Barr was happy if the

pursuer and he had a house on the farm. He spoke to the pursuer but she was reluctant and

said she really needed to think about this, because she had had a bad time recently with her

family - including her parents. Mr Barr had wanted the pursuer away from the farmhouse,

that was his main complaint. This was because the pursuer’s daughter was disruptive and

so was the pursuer. There was a lot of jealousy between the pursuer and some of her

siblings.

[85] The defender said he was a little surprised when Mr Barr offered a parcel of land to

him. There had been a degree of enmity between the siblings. They lived and worked in

close proximity. There was a potential for difficulties (ie from the pursuer’s siblings) and

that is why the defender suggested to Mr Barr that the land should go into the pursuer’s

name and not his. He was an outsider to the family. He explained that he said to Mr Barr

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that if he was giving land he might be in difficulty with his other children, and it ought to be

put into the pursuer’s name. He would send the disposition in favour of the pursuer.

[86] A passage was put to him from the pleadings in the defender’s action. In particular,

there was an averment that Mr Barr offered a plot of land. The defender was asked how he

could reconcile that with Mr Barr’s offer to him and to the pursuer. The defender stated that

Mr Barr had made that offer but he, the defender, was staying at Clarkson. He had not

taken it up. Meantime, the pursuer was going “hot and cold” about living on the farm with

her daughter. He explained that he spoke to the pursuer and said they (ie the parties) could

have the land. To protect the pursuer from sibling aggression, he suggested that the land

should not be in his name but rather should be in the name of the pursuer. He could not

recall being involved in the minutiae of the 2003 disposition. It was a long time ago. It was

drawn up and needed to be witnessed, and so far as he could recall, this was done by a lady

who lived at the bottom of the hill. He couldn’t recall if he was present or not on that

occasion. He was not sure.

[87] The pursuer’s version of events spoken to in her oral evidence, that the defender had

presented her with a document containing arcane language and references to 14th century

land law was put, but the defender rejected this as “absolute nonsense”. He did not know

where this had come from. He had not given the pursuer the disposition to sign; it was

Mr Findlay who had sent the disposition to her. He could not recall giving her the will to

sign. He repeated his view that the pursuer’s evidence about being presented with a

document referring to 14th century land law was nonsense.

[88] He was asked why the 2003 disposition was only recorded in 2006. He explained

that when the 2003 disposition had been signed, it was not known whether the application

for planning permission to build a house on the land would even get off the ground. There

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had been a very difficult planning officer at the council. The defender had had to liaise with

SEPA about septic tanks and with architects; there were lots of side issues. The difficulty at

that time was the uncertainty as to whether Mr Barr would get planning permission. It took

years to get planning permission and there was the need to please all of his neighbours

having an interest. The reason why planning permission had to be in the name of Mr Barr

was because of the planning condition. The planning officer had told him the planning

application had to be in the name of Mr Barr. The link between planning permission and the

disposition was, basically, that if there had been no planning permission then the land

would have remained with the Barr family. In reply to further questions, the defender

confirmed he was not sure why the disposition helped in any question with planning

permission. He did not know. The reason the 2003 disposition was there was because of the

rest of the family. He didn’t want the land in his name and Mr Barr agreed it would be in the

pursuer’s name. That was the reason for the 2003 disposition. It was reassurance to the

pursuer that she would not be put out of the farm.

[89] It was put to him that he should not have acted for the pursuer in respect of the

disposition. The defender did not accept this, given the Advice letter written to her and

what Allan Findlay had done. He was satisfied at that time that, basically, what he had

done was acceptable and would be understandable to anyone looking at matters from the

outside. He had invested in the house and he and the pursuer had agreed on that.

[90] He was challenged as to the level of his contribution. The defender was firm that he

had funded all of it, including the applications for planning permission and fitting out and

furnishing. During some of the construction there had been a temporary link between the

house and the farm to access the electrical and water supplies to the latter. He had supplied

the pursuer with money. Whether she paid the contractor personally, he had met all the

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larger items and the expenditure. He had given the pursuer cash in connection with the

house. It had not been given unconditionally, as the pursuer asserted. He had given her

cash to buy materials and to pay the labourers because she had a safer place for the cash

than he had. She was on site. She lived on the farm. She could check deliveries. He was a

busy solicitor and worked until the early hours. She was the conduit in getting funds to

contractors to work.

[91] He accepted that he had not sent Terms of Business letters in relation to the 2006

disposition, nor had he opened a conveyancing file. He had probably sent such Terms of

Business letters in previous years in relation to other instructions.

[92] There was no re-examination of the defender.

Allan Findlay

Examination in chief

[93] While now a summary sheriff, Allan Findlay had been in private practice for many

years, often practising on his own account. He ultimately joined the defender’s practice as

an assistant. He confirmed that he was aware that the defender was in a personal

relationship with the pursuer and that he had understood it to be the intention of the

pursuer and defender to live together. The defender asked him to deal with the transfer of

title to the pursuer and him. He was the author of the Advice and Waiver letters. These

bore his reference. Indeed, he had typed these letters out himself. He had done so because

the defender did not want his personal affairs to be known to his staff. It was in any event

not unusual for Mr Findlay to type his own letters.

[94] In relation to the purpose of these letters, Mr Findlay explained that he had

understood from the defender that an area of land at the farm, which was owned by the

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pursuer’s father, was to be transferred to or in the name of the pursuer, and the intention

was that the house was to be built on that ground by the defender, with a view to them both

having that as their family home and in joint ownership. He had sent these letters because

the defender had asked him to do so. The defender was concerned that the pursuer should

get independent advice before transfer of title effected by the disposition. The title at that

point was in her own name. He understood the cost of building the house was born by the

defender.

[95] He was taken to the terms of the Advice and Waiver letters, and he confirmed what

he wrote and what he intended to convey. He assumed he had received the Waiver letter

back but, after this passage of time, had no positive recollection to that effect.

Cross-examination

[96] So far as he could recall, these letters related to the point in time when the house was

more or less completed. He had never met the pursuer. He accepted that he could not recall

receiving the Waiver letter, it had been 12 years ago, but he assumed he had. He also

assumed that these letters simply came in and were processed in the normal way. He did

not know whether he himself had personally filed these.

[97] In response to a question, he confirmed that he was sure a copy of the disposition

had been provided with the Advice letter because he had typed it. He could not say after

this passage of time whether the disposition had been returned with the letter but he could

not see why it would not have been at that time. He also confirmed that the defender was

concerned that the pursuer get independent advice. He confirmed that he was also

concerned about this, because the pursuer was signing away half of her land and it was

important that she get independent legal advice and he made this absolutely clear to her.

Page 39 ⇓

[98] He confirmed he left the employment of the defender in about February 2007.

[99] It should be noted that this witness was not challenged on the basis that the

disposition was incomplete or unsigned. Nor was there a challenge to his credibility and

liability.

Re-examination

[100] Mr Findlay could not specifically recall sending the disposition for registration but

confirmed that documents were sent for registration in batches. He confirmed the reference

“A F/Cassel” was his reference and not that of a secretary. The reason that the Advice and

Waiver letters were dated the same date was because he had typed and sent them on the

same date. He could not recall any system for date-stamping letters on receipt. He

confirmed that the firm’s signature under the warrant for registration in the GRS was his

own.

Morag Hill

Examination in chief

[101] The defender next called Morag Hill who had witnessed the pursuer’s signature on

the disposition. At the time she and her husband had been long-standing neighbours of the

Barr family. She had known the pursuer since she was seven. Morag Hill and her late

husband had been on good, neighbourly terms with the Barr family, helping each other out

from time to time. Mrs Hill described regularly being asked to witness signatures for deeds

being signed by members of the Barr family. This was usually while she was up at the

Barr family house on the farm.

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[102] She was asked if she would ever sign a blank piece of paper, to which she was quick

to reply no, because she understood she was witnessing the signatures of those granting a

deed. After the raising of these proceedings, she had discussed this with her son, a solicitor,

and she understood that she was there to witness signatures. She was quite clear about this.

[103] The disposition was put to Mrs Hill. She confirmed her signature, date and the place

of signing (at the Barr farmhouse) and the pursuer’s signature. In identifying the latter she

did comment that she did not know if the pursuer’s writing was always the same. She

clarified what she meant by this answer, saying that the pursuer was not particularly

learned and she thought her writing might vary from document to document. She accepted

that she suspected this but was not sure. She reiterated her position that she would not sign

a blank piece of paper. She was also asked if she would have signed the disposition if the

pursuer had not signed the deed. Mrs Hill was firm that the pursuer had to sign the

disposition so she could see it in order for her, Mrs Hill, to witness that signature. She

accepted that she did not read the document at the time, she just witnessed the pursuer’s

signature.

[104] In response to a question from the bench, as to whether she had acted as a witness

where the grantee had already signed a document but acknowledged the signature in her

presence, she confirmed that she had always witnessed the granter signing the deed she was

being asked to witness. In the case of the disposition, she had witnessed the pursuer’s

signature in the kitchen of the farmhouse.

Cross-examination

[105] She was first asked if she had ever discussed the pursuer’s marriages with the

pursuer’s brother, John Barr. She explained that she had no occasion to do so. This

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statement was challenged under reference to an affidavit she had previously given, which

lodged at that point, in which the following statement appears: “I recall on one occasion

when [the pursuer’s] problems were being discussed, and her father John stated there will

be no third marriage”. Mrs Barr readily acknowledged that she had forgotten about that

observation.

[106] It was put to her that the pursuer had brought the disposition to her own home and

had left it for her to sign. Mrs Hill stated that she could recall one occasion when she

witnessed a document for the Barr family in her own home. She explained that she

regularly witnessed deeds such as certificates, licences and so on. She simply witnessed a

signature, as a neighbour would do. It was suggested to Mrs Hill that she was mistaken

when she said she had witnessed the pursuer’s signature. She rejected this, explaining that

she would not sign (as a witness) if she had not seen the deed signed in front of her.

Mr Macreath

Mr Macreath’s Report

[107] “Background

[The defender] has been a solicitor since 1978. He acted for [the pursuer’s father] in a

number of matters as private client solicitor. In particular he acted for [the pursuer’s

father] in connection with ground subject to compulsory purchase at the time of the

M77 road extension and the south orbital link to the M8. [The defender] acted for

[the pursuer’s father] on compensation issues in respect of a Compulsory Purchase

Order in relation to ground at Bonnyton Farm. [The defender] acted for [the

pursuer’s father] in connection with a dispute over ground which [the pursuer’s

father] grazed but over which he did not have a formal tenancy. Proceedings were

instituted whereby [the defender] represented [the pursuer’s father]. [The defender]

achieved a negotiated settlement for [the pursuer’s father]. [The pursuer’s father]

was an established client. As a result he was introduced to [the pursuer], one of five

children of [the pursuer’s father]. At the time of introduction [the pursuer]

instructed [the defender] in connection with her divorce. [The defender] assisted

American lawyers representing [the pursuer] in the provision of information in

connection with [the pursuer]’s divorce proceedings in the United States of America.

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[The defender] formed a relationship with [the pursuer] in or around 2003. [The

pursuer’s father] wished [the pursuer] and her children to have a home, if possible,

on ground at his farm steading. [The pursuer’s father] was in his late 70’s and was

concerned that [the pursuer] needed to have a home. A solution was found that

ground could be made over to [the pursuer] but that ground had no planning

permission attached to it. Such planning permission may well prove difficult to

obtain and [the pursuer’s father] instructed [the defender] to assist. [The defender]

assisted an established client, [the pursuer’s father] to seek planning. [The pursuer]

was an established client within the meaning of the Law Society Conflict of Interest

Practice Guidance. An established client is one for whom a solicitor has or his

practice unit has acted on at least one previous occasion. [the defender] and [the

pursuer] agreed that any Disposition in favour of [the pursuer] need not be

registered unless and until planning permission for a dwellinghouse was obtained

with appropriate Building Warrant. The relationship between [the defender] and

[the pursuer] became intimate. In 2006 planning permission was obtained for a

dwellinghouse to be built on the ground gifted by [the pursuer’s father] to [the

pursuer] in terms of the 2003 Disposition. [The defender] met the attendant costs in

connection with planning advice and other specialist services. [The pursuer’s father]

and [the pursuer] and [the defender] agreed that the unregistered 2003 Disposition

by [the pursuer’s father] to [the pursuer] be registered. [The pursuer’s father], [the

pursuer] and [the defender] agreed that title to the ground when planning

permission was obtained would be taken in joint names of [the pursuer] and [the

defender] and to the survivor. [The defender] was 18 years older than [the pursuer].

The purpose of transfer was to secure the interest of [the defender] as [the defender]

had met all costs for Planning and Building Warrants including professional fees and

would now meet all costs in the building of the dwellinghouse to be shared by [the

pursuer] and [the defender]. The basic costs as advised by [the pursuer’s father]

would be £200,000 but the final fitting of the property would increase these costs to

£350,000 with [the defender] meeting all of these costs.”

“2. In acting for [the pursuer] as grantor and for [the pursuer] and [the

defender] as grantee of the 2006 Disposition did [the defender] properly

and sufficiently discharge professional duties incumbent upon him?

This transaction relates to a time when [the defender] and [the pursuer] were in a

personal relationship. [the defender] according to the matrix of facts provided made

financial provision to obtain planning permission for the building of the dwelling

house on the ground. [The defender] maintains this was not a commercial

relationship. The relationship between [the pursuer] and [the defender] was settled

and the intention was for the parties to marry. Their intention was the

dwellinghouse would be a matrimonial home for [the pursuer] and [the defender].

The ground with Planning Permission now had greater value than originally

anticipated at the time of the 2003 Disposition. The ground is moorland at the

Fenwick Moor. A dwellinghouse was to be built on the ground. The total cost of the

building works and ancillary planning and professional fees, according to [the

defender], amounted to £350,000 to be met entirely by [the defender]. [The pursuer’s

father] had gifted the ground to [the pursuer] in terms of the 2003 Disposition. [The

Page 43 ⇓

pursuer’s father] no longer had an interest in the ground. [The defender]’s

contribution was the material financial contribution. [The defender] issued a letter to

[the pursuer] on 14 April 2006. There is an acknowledgement from [the pursuer]

who signed using her former married name ‘Fillens’. [The pursuer] was asked and

advised to take independent advice. She did not wish to do so and she would sign a

letter so confirming. Of itself that would validate [the defender]’s actings. It cannot

be said there was any substantial commercial benefit flowing to [the defender]

personally. This is asserted on the basis that the ground on which the dwellinghouse

would be built had little or no material value as at 2003 and no significantly greater

value in 2006 even with Planning Permission obtained. [The defender] would have

to expend substantial sums of money to build the house in which he and [the

pursuer] intended to live as man and wife. [The pursuer] remained an established

client. She was been [sic] advised that the proper course was that she should take

independent advice. [The pursuer] accepted receipt of that letter as I understand it,

and signed the letter of declinature in respect of independent advice. Whilst I note

that the letter from [the defender] makes reference to the executed Disposition being

enclosed and [the pursuer] signed using the name ‘Fillens’ as opposed to ‘Barr’ my

conclusions are based and premised upon the matrix of facts as known to me and

based on the limited documentation provided to me. There is no strict liability

offence so far as a solicitor forming a sexual relationship with a ‘client’. There may

be a risk of breach of fiduciary duty and a risk of no longer being able to give

independent advice free from external influence in certain circumstances but a

relationship between solicitor and client of a sexual nature does not of itself prohibit

the solicitor from acting subject to a solicitor such as [the defender] being able to

demonstrate he was free from influence and that his client, in this case [the pursuer],

obtained his utmost trust and confidence.

Summary and Conclusion

1. [the defender] may have been in breach of the 1986 Practice Rules in failing to

issue conflict of interest letters to [the pursuer’s father] and [the pursuer] relating

to the 2003 Disposition. However, both parties were established clients and

whilst there may have been a technical breach that of itself may not amount to

professional misconduct.

2. I do not consider that [the defender] breached any fiduciary duty to [the

pursuer’s father] relative to the 2003 Disposition given his then ‘budding’

relationship with [the pursuer]. That relationship would not amount to

professional misconduct. CF The Law Society of Scotland –v- Solicitor B SSDT

decision 29 April 2015.

3. In relation to the 2003 Disposition I do not consider that [the pursuer’s father]’s

actings would amount to professional negligence applying the Hunter –v- Hanley

tests.

4. In respect of the 2006 Disposition [the defender] did advise [the pursuer] to

obtain independent advice, see letter of 14 April 2006 and her acknowledgement

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that she did not insist upon getting independent legal advice. In my view that

does not amount to professional misconduct and in my opinion does not amount

to professional negligence when applying the Hunter –v- Hanley test.

5. Even if there were, as admitted by both [the pursuer] and [the defender], an

intimate sexual relationship, that of itself did not prohibit [the defender] from

acting in connection with the 2006 Disposition unless it can be demonstrated that

[the defender]’s ability to act was impaired by the personal relationship. This is

not a case involving family law. This is a case involving property where a father

gifted to a daughter some three years previously a plot of ground with no

Planning Permission. The intention to build a dwellinghouse required [the

defender]’s involvement, expertise and financial contribution.

6. The letters of 14 April 2006, if considered valid, amount to providing advice to

[the pursuer] to take independent legal advice. She declined to do so.”

Examination in chief

[108] The defender’s expert had qualified in 1976. He had developed a professional

expertise in acting for solicitors in all matters concerning professional discipline and

conduct. He had been a chairman of the Legal Defence Unit. He had over 30 years’

experience in dealing with, and appearing before, the SSDT. He knew Mr Reid. He was

chairman of a very well established firm. He had known him for many years and readily

acknowledged his “great expertise” in property law. He accepted that Mr Reid had more

experience in property law then he did. He also accepted that he, Mr Macreath, had more

experience on disciplinary matters and appearing before the tribunal. So far as he was

aware, Mr Reid had never appeared before the SSDT.

[109] He adopted the terms of his report.

[110] Mr Macreath explained that there was a great difference between allegations of

negligence and of breach of fiduciary duty. It appeared that Mr Reid viewed the issue of a

solicitor having a relationship with a client as a “strict liability” matter, which was not his

opinion.

Page 45 ⇓

[111] The Advice and Waiver letters were put to him. He was aware that Allan Findlay,

then in the employ of the defender, had prepared these. He confirmed the terms of the

letters, namely that the author was instructed in relation to transfer of title; that the title was

to be in the name of the pursuer and the defender and the survivor. The Advice letter

suggested the disposition was enclosed and it stressed that that deed had final and legal

consequences, and it asked the pursuer to get professional legal advice. In relation to the

Waiver letter, there was no particular style for letters of this type. There was guidance on a

5.2 letter and in regulation 7. It was put to him that these letters were clear in their terms, to

which Mr Macreath assented. He observed they were expressed in very great detail

including block capitals; normally such letters were short and to the point. The point of

such a letter was that the individual was being encouraged to take legal advice and if they

did not, to obtain a waiver. He was asked if, as at 2006, the Waiver letter sufficed. In his

view it did so long as the solicitor was satisfied that the addressee had signed it and

understood its terms.

[112] Under reference to a passage in his report (at page 5) he explained the purpose of

conflict of interest letters, being where a solicitor acted for both parties and, if a conflict

arose, would have to withdraw from acting for one or both of them.

[113] He was asked if, in the circumstances, notwithstanding the Advice and Waiver

letters, there had been a breach of fiduciary duty on the part of the defender. In his view,

the answer was no. He referred by way of illustration to a recent case (7/93 of process)

which concerned a solicitor being involved in a personal relationship and the question of

whether this was a breach of fiduciary duty being addressed. He drew attention to this case

to illustrate that a non—professional (ie personal) relationship between a solicitor and client

could give rise to significant problems for the solicitor, his independence, and the fiduciary

Page 46 ⇓

duties owed to the client. This was the most recent decision in relation to that issue and

where proper findings by the SSDT had been made. He explained that in that case, there

had been sexual relations between the solicitor and a vulnerable client. While the solicitor

had withdrawn from acting, the finding of the SSDT had been against the solicitor. He

distinguished that case on its facts, stressing that the client in that case had clearly been

vulnerable. He also emphasised the observations of the Tribunal that the solicitor’s conduct

in those circumstances did not import a “strict liability”. He referred to the observation that

there was no “absolute prohibition” on a sexual relationship between a solicitor and client,

but the solicitor must be cautious that his independence was not imperilled and that the

fiduciary duty owed to the client was not impaired. He also confirmed that, in his

understanding, there was no suggestion that the pursuer in this case was vulnerable. He

also narrated his researches in the US and elsewhere, but Scotland maintained a distinctive

position on this issue. He confirmed the case dated from 2010 and that there was no change

in standards between 2002 and 2010.

[114] When referred to the 2002 Code, he explained the history of their development and

adoption in this jurisdiction. The impetus for this had been contact with the European bars

and the CCBE. The terms of paragraph 2 of the 2002 Code was put to him (see paras [59]

and [60], above). He stressed the significance of the words “where appropriate”. In his

opinion, these words appeared for good reason and reflected the articulation in Scotland of

the test for professional misconduct by Lord President Emslie in the case of Sharp v Council

of the Law Society for Scotland 1984 SC 129. This case was significant, as it was the first time

authoritative guidance had been given as to what could be professional conduct and the

standards to be expected of solicitors. The question to be answered was the same and the

Page 47 ⇓

test was conjunctive: it must be serious and reprehensible conduct. This test had

subsequently been followed in England and adopted by the Inns of Court.

[115] It is now prohibited, since 2009 or 2010, for a solicitor to prepare a will in which he

had an interest. He was asked what his position would be if the defender had prepared the

disposition but had contributed nothing, he responded by asking why should a solicitor get

such a benefit for no consideration? It was a question of equivalent consideration. A

different hypothesis was put to him, namely, that if the pursuer had no savings, no capital

and no income and if the defender had funded all or most of the costs of the house, would

this be a relevant factor. Mr Macreath accepted this “absolutely”. In his opinion it must be

relevant. He had based his opinion on the premise that the defender bore the costs, other

than the supply of a few acres of pasture land and which, until planning permission had

been obtained had, no or minimal value; in other words the defender had spent his own

funds. He expanded on this by contrasting the position of a solicitor acting for the testator in

the grant of a will and under which the solicitor obtained a benefit. He asked, what interest

was there in having a solicitor draft a will and receive a significant legacy? This was

prohibited. Similarly, if property was transferred and the person transferring the property

was bearing all the costs, that person must obtain independent advice. But if the other

person, ie the transferee, was bearing all of the building costs this was different.

[116] Under reference to the Advice and Waiver letters he was asked whether these letters

would have sufficed in 2006 to discharge any fiduciary duty owed. He stated they would

not suffice if someone was making over an asset for no value, even if granted for “favour

and affection”. The defender would be duty-bound not act. However, he stressed,

everything must be assessed according to circumstances and culpability. If there had been a

Page 48 ⇓

personal relationship between the pursuer and the defender, and if the intention had been

that the subjects were to be a family home and the defender had paid, these letters sufficed.

[117] A few passages in Mr Reid’s report were put to him. It was put to him that Mr Reid

had softened his position, namely if there had been consideration or significant contribution

on the part of the defender, then his opinion was closer to Mr Macreath’s.

Cross examination

[118] Mr Macreath was first challenged that not all of the papers supplied to him had been

produced. In relation to the factual narrative set out at the beginning of his report, he had

this material on file but had not produced it. (He was not challenged that any part of his

factual narrative was incorrect.)

[119] He acknowledged that Mr Reid had a great expertise in property, whereas his

experience and expertise was in representing those who appeared before the SSDT. His

expertise related to the conduct of solicitors across the whole gamut of professional practice.

He also appeared for other professionals, such as doctors and nurses.

[120] Returning to the background narrated in his report, he was asked the source of

certain statements. These statements put to him included,

(i) that Mr Barr and the pursuer had agreed that the 2003 disposition would not

be registered unless and until planning permission for a dwelling house was

obtained with the appropriate building warrant;

(ii) that the defender met the attendant costs in connection with the planning

advice and other specialist services;

(iii) that Mr Barr, the pursuer and the defender had agreed that the 2003

disposition be registered; and

Page 49 ⇓

(iv) that the title to the land would be taken in the names of the pursuer and the

defender and the survivor, when planning permission had been obtained.

Mr Macreath confirmed that this information came from the defender or from the

instructing solicitors.

[121] Notwithstanding that there is no challenge to (or conclusion or plea in law directed

to) the 2003 disposition, Mr Macreath was asked a number of questions about this, to ask if

there was an impropriety on the part of the defender in also acting as solicitor in relation to

that deed. As I understood his evidence, Mr Macreath effectively rejected that proposition

or that any criticism was justified, even if there were a personal relationship between the

pursuer and the defender at that time. The defender had acquired no interest under the

2003 disposition; it conferred no consideration or benefit on him and therefore there was

nothing to prevent his acting. He did not accept the proposition that there was “an indirect

benefit” by reason of the defender’s relationship with the pursuer. The title under the 2003

disposition was in the sole name of the pursuer.

[122] In relation to the 2006 disposition, and the duties owed by the defender to the

pursuer, he was asked about the importance of the equivalence of consideration. He

considered this to be a relevant factor. The hypothesis put to him was, if there was no

consideration passing from the defender to the pursuer, whether there was a breach.

Mr Macreath would consider whether the client was vulnerable or not, and he explained

that the solicitor would have to be mindful that if there were a benefit to him, ie beyond a

token one, and no equivalence in his financial input, then he would have to suggest that the

other person take independent legal advice. But on the facts and circumstances, if the

solicitor was funding the planning and funding the construction of the house, it would not

be deemed to be unreasonable in a professional sense. He accepted that the consideration

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would be the value of the benefit conferred, as opposed to outlays and expenditure. He

understood the defender was funding the planning permission exercise, and to large extent

the funding of the building and its fitting out. Otherwise this was simply agricultural land.

In those circumstances, both parties benefited and the property could be taken in joint

names and the survivor.

[123] In respect of the question as to how to relate a breach of fiduciary duty and the

Hunter v Hanley test, Mr Macreath confirmed that these were very different. The test for

professional misconduct was that set out by Lord President Emslie in the case he had

explained earlier. A case of professional negligence was completely different and he

explained the three – limbed test which the pursuer needed to prove. It was a very high test

to demonstrate negligence in the exercise of professional judgement. He stressed that these

were really two very different areas. A solicitor could be guilty of professional misconduct

but not be found negligent. One example would be a breach of the accounts rules, giving

rise to professional misconduct but not involving any negligence. The question of breach of

fiduciary duty was very different. He acknowledged that there was confusion about this,

even in the regular regulatory context. Misconduct did not satisfy the test for professional

negligence in Hunter v Hanley. That is why he looked at the matrix of facts with such care.

[124] There was no re-examination.

Parties’ submissions

[125] Parties lodged written submissions in advance of their oral submissions at the end of

the proof. I have taken those into account. I need not set these out for the purposes of this

Opinion.

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Discussion

Grounds for reduction relied upon by the pursuer

[126] As noted above, it has not always been easy to discern the legal ground or grounds

relied upon by the pursuer in this action of reduction. There is a degree of confusion in the

pleadings (which refer to misrepresentation, negligent actings and breach of fiduciary duty).

On the first morning of the proof, the pursuer’s solicitor advocate, Mr Stevenson,

endeavoured to clarify the pursuer’s position and to focus matters by amendment to his first

plea in law. In particular, he deleted the reference to “negligent actings” and inserted

instead the phrase “breach of fiduciary duty”. The case was thereafter conducted on the

understanding that this was the essential ground of challenge relied upon by the pursuer.

Notwithstanding this, in Mr Stevenson’s written submissions at the end of the proof he

introduced the topic of undue influence and reintroduced the topic of negligence and undue

influence, in addition to that of breach of fiduciary duty. When I asked him to confirm

what grounds he relied upon, he identified breach of fiduciary duty, negligent

misrepresentation and negligence.

[127] Even on a benign reading of the pleadings, it is difficult to find relevant and specific

averments or pleas-in-law for all of these. On a fair reading, the averments about

misrepresentation are more apt to play a supporting role for the case of breach of fiduciary

duty rather than to constitute a free-standing ground. They bear to relate to the

circumstances by which the pursuer came to sign the disposition.

Issues of credibility and reliability

[128] Each party challenges the credibility and reliability of the other. I will deal

separately with the challenges to the parties’ respective expert witnesses, Mr Reid,

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Mr Donnachie and Mr Macreath. I consider first the credibility and reliability of the other

factual witnesses, apart from the parties themselves.

Allan Findlay

[129] There was no challenge to the credibility or reliability of Allan Findlay. I have no

hesitation in accepting him as an entirely credible and reliable witness in the essentials of his

evidence. Given the passage of time, it is not surprising that he had little active recall of the

precise dates or dealings with the documents with which he was concerned. I accept his

evidence in its entirety concerning the drafting, sending, receipt and recording of the

disposition and the Advice and Waiver letters.

Morag Hill

[130] While Mr Stevenson sought to challenge her reliability on the basis that she could not

recall a single sentence in an affidavit provided by her nearly two years before she gave her

evidence in court, I do not accept this criticism. She readily accepted that she had forgotten

about the brief statement made to her by Mr Barr (whom she was quoting in her affidavit).

She was otherwise a very precise, clear and careful witness and I have no hesitation in

accepting her evidence.

Mr and Mrs Barr

[131] The evidence of these witnesses was taken on commission over two days in January

and April earlier this year. The Commissioner expressed concerns about their lack of

credibility and reliability. Having read their evidence, it is difficult to discern what direct

relevance it had to the subject matter of this action (once properly focused). Most of their

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evidence concerned an inchoate challenge to the 2003 disposition. As Mr Stevenson

accepted that the averments concerning the 2003 disposition were irrelevant, I need say little

more about their evidence. In light of the Commissioner’s comments, I would be reluctant

to place any weight on their evidence particularly if unsupported by other credible and

reliable evidence or by agreed documents.

The pursuer

[132] The pursuer accepted she was not good with dates and there is, therefore, a question

about her reliability. Given that she was at times talking about events 10 or 12 years ago,

this itself would not be a cause for concern. However, there are very serious issues

concerning her credibility. It suffices to narrate five bases of concern:

1) In the first place, she admitted improperly claiming income support for a number

of years, even although she knew she was not entitled to this by reason of the

substantial cash provided to her by the defender. It is likely that these cash

payments began in about 2003 or 2004. Nonetheless, she remained on income

support for some years (either to 2006, when she moved into the house, or until

2011 when she resumed employment).

2) As quoted above, the pursuer’s case on Record is essentially predicated on her

having signed the disposition, but this having been procured by a combination of

the defender’s alleged misrepresentation as to its terms coupled with the fact that

she did not read it at the time. (See para [8(5)], above, and the passages

underlined.) By the time of her oral evidence, however, she departed radically

from this version of events and asserted that she had never seen the disposition

and that either the signature was a forgery, or, at least, had been appended

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fraudulently to the disposition. It is difficult to envisage evidence that could be

more at odds with a party’s written case than this. She could not explain the

departure from the case pled on her behalf.

3) However, it is not just a question of a disjunction between the pursuer’s evidence

and her pleadings. As was explored with her in her evidence, she had consulted

solicitors from as early as 2010 or 2011. This was at the time that there was a

possible challenge by her father, John Barr, to the 2003 disposition, and, latterly,

there was the defender’s action for division and sale. What is striking about the

file note entries of her then solicitor, are the matters now relied upon in these

proceedings but which were never raised with her solicitor. At that time, for

example,

(i) There was no suggestion that the disposition did not reflect her

dispositive intention. In other words, what she understood she was

trying to save from her father’s threatened action to challenge the 2003

disposition, was her one–half interest in the subjects. At no point did she

apparently say to Lynn Collingham that, contrary to the terms of the

disposition, she was entitled to the whole of the subjects.

(ii) There was no suggestion that the defender made any specific

representation, or (as the pursuer would now have it, as averred in

article 5), any misrepresentation anent the effect of the disposition.

Further, there was no suggestion that this (mis)representation deflected

her from reading the disposition. (Cf para [8(5)], above.)

(iii) Rather, the pursuer’s position at that time was that she had not read the

disposition: this was the subject matter of the advice Lynn Collingham

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gave at the time (see paras [36] and [39]ff, above), but that she had

simply signed it. (Cf. para [8(5)], above, and the passages underlined

and in bold.

(iv) There was no assertion at that point that she had not signed the

disposition or that the signature thereon was a forgery.

(v) Further, there was no suggestion that the disposition was not the deed

she had actually signed or that it was several pages shorter than some

other document said to have been signed.

By implication, the pursuer’s position is that she was deflected from defending

the defender’s action for division and sale by reason of what she would argue

was incorrect legal advice she received at the time. In substance, that advice was

to the effect that, having signed the disposition, even though she had done so

without reading it, she was bound by its terms. The difficulty with this position

is that it is irreconcilable with the assertion in her oral evidence that she had not

signed the disposition. Had her position at that time been that she had not

signed the disposition, such advice would have been incomprehensible and, at

the very least, would have prompted her to explain to Lynn Collingham what she

now asserts (namely, that she didn’t sign the disposition).

4) In her evidence the pursuer maintained that she had only ever signed one deed

intended to have legal effect and that the defender “kept all of the paperwork”,

meaning all of the legal documentation. Notwithstanding that assertion,

amongst the documents produced on her behalf was a will in her name and

signed by her in 2002. Inexplicably, by the time the pursuer came to give

evidence, she denied having seen or signed this, or having ever instructed the

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defender to prepare a will. She went so far as to maintain that her signature on

the will was a forgery. This evidence sits uncomfortably with the fact that she

produced the will as part of her own productions.

5) In her oral evidence, the pursuer also maintained that her signature on the

Waiver letter was a forgery. On Mr Findlay’s evidence, he drafted, sent out and

received the Waiver letter. Furthermore, in relation to the disposition, at points

in her evidence the pursuer maintained that it was not her signature. At other

points, she maintained that, if it were her signature on the disposition, she herself

had not appended it to that document. There is an inherent improbability in

having one’s signature forged on a variety of documents (the will, the Waiver

letter, the disposition), at least where these were not all handled or controlled by

the same person. In the light of the evidence of Mr Findlay and Mrs Hill, and the

fact that the pursuer herself produced the will, I find the pursuer’s evidence on

this matter to be improbable.

[133] For these reasons, I find the pursuer to be a largely incredible and unreliable witness

and I place no reliance on her evidence, unless it is also supported by a witness whom I have

accepted as credible and reliable.

Has it been proved that the pursuer signed the disposition?

[134] The pursuer’s case in record is premised on the fact that she signed the disposition.

Her essential ground of challenge is that she was duped by the defender into signing this

deed. As recorded above, the pursuer’s oral evidence constituted a complete volt face from

her written case. I am obliged to consider the consequence for the pursuer of this feature of

her evidence. Had matters rested with her evidence, she would have failed to prove the

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factual premise upon which her whole case was based and which was the basis upon which

her expert gave his report. (I raised this issue with Mr Stevenson before the evidence of

Mr Reid was resumed on the third day of the proof. He accepted the offer of time to

consider his position and to take instructions. Having done so, he did not seek to amend. It

was at that point that he tendered the suggestion, apparently just discussed with the

pursuer, about the substitution of new or other pages.) However, there is also the evidence

led by the defender from Morag Hill and Allan Findlay whose evidence I accept. In other

words, on this issue and in the light of the evidence of these other witnesses, the defender

has proved that the pursuer did indeed sign the disposition, which had been drafted and

sent by Mr Findlay, witnessed by Morag Hill, and sent for registration to the GRS by

Mr Findlay. Accordingly, my finding that the pursuer was lacking in credibility and

reliability is not fatal to this part of her case.

The disposition

[135] Given the pursuer’s oral evidence and the faint suggestion made by Mr Stevenson in

his submissions that the disposition lodged might be incomplete, I require to address this

matter. As I understood it, Mr Stevenson advanced such a submission in an attempt to

reconcile the pursuer’s pleaded case with her oral evidence of having been presented with

and having signed a deed which began with references to 14th century property law.

Mr Stevenson never put to any witness that the disposition was in some manner incomplete

or that, as suggested by Mr Stevenson (again, only in submissions), it had different front

pages which had been produced to the pursuer but which somehow had been subsequently

removed. Indeed, Mr Stevenson went so far as to suggest in his submissions that the only

inference was that this was what had been done. What Mr Stevenson did not address was

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Mr Findlay’s evidence, in which he expressly confirmed that the disposition was complete

and that he had typed it himself, as he had the Advice and Waiver letters. There was

absolutely no evidence to support Mr Stevenson’s somewhat extraordinary suggestion and I

have no hesitation in rejecting it as having no foundation in the evidence.

Advice and Waiver letters

[136] I next turned to consider the conflicting evidence about these letters. The pursuer

maintains that she never received these and that her signature on the Waiver letter was a

forgery. For the reasons already explained, I accept Mr Findlay’s evidence on this chapter in

preference to that of the pursuer. I also accept the short passage of the defender’s evidence

that the pursuer had mentioned these letters to him. I therefore accept that the pursuer

received these letters and that she returned the Waiver letter. It follows that I reject the

pursuer’s assertion that the latter was a forgery.

Other chapters of evidence

[137] Before turning to consider the expert evidence led in this case, it is convenient next to

consider the other, ancillary chapters of evidence.

Has the pursuer proved any misrepresentation on the part of the defender?

[138] On record, the pursuer avers that the defender misrepresented the substance and

effect of the deed she said she signed. In her oral evidence, she spoke to having been

presented with a document commencing with references to 14th century land law, which she

described as “gobbledygook”. It was in this context that she asserted that the defender

advised her not to worry and that this deed related to her father’s disposition of the land to

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her (ie as effected by the 2003 disposition). I have already rejected her evidence that there

was, in effect, a sleight of hand in relation to the number of pages and presentation of the

disposition to her. Given the very substantial concerns about her credibility and reliability, I

do not accept this chapter of her evidence. In particular, I do not accept that the defender

made the kind of representation asserted in relation to the disposition.

[139] It will be recalled that the 2003 disposition was not immediately presented for

registration but that this was done only once planning permission for construction of a

dwelling house on the land was secured. It may well be the case that the pursuer has

confused in her own mind an explanation of the 2003 disposition with the 2006 disposition,

which were presented at the same time to the GRS for registration. This is also consistent

with Morag Hill’s evidence that the pursuer was not particularly learned.

[140] In any event, as I find there was no misrepresentation as to the import of the

disposition, it matters not whether this was advanced as a free – standing case of negligent

misrepresentation (as Mr Stevenson sought to argue) or whether this was simply allied to

the pursuer’s case for breach of fiduciary duty.

Did the pursuer refuse to obtain independent legal advice?

[141] I have already held that the pursuer received the Advice and Waiver letters. In her

oral evidence the pursuer readily accepted that she could understand the terms of these

letters. I have also accepted the defender’s evidence that the pursuer had mentioned

receiving these letters to him. In the light of this evidence I find, albeit as a matter of

inference, that the pursuer declined to take separate and independent legal advice and that

she signed the Waiver letter to that effect, and in full knowledge of the consequences of

doing so.

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[142] This is reinforced by the parties’ evidence that their common intention at that time

had been to build a house on the land with a view to starting a life together. While the

pursuer presented as somewhat embittered in her evidence, it was apparent from the

defender’s presentation in evidence that he had genuinely been in love with the pursuer at

the material time. This provides an explicable context for the pursuer’s grant of the Waiver

letter.

[143] Whether the Advice and Waiver letters were sufficient to exonerate the defender

from any breach of fiduciary duty or negligence, this question remains to be determined in

the light of the parties’ expert evidence, to which I shall turn shortly.

The delay in registering the 2003 disposition until registration of the 2006 disposition

[144] The 2003 disposition was not presented for registration in the GRS until 2006, when it

was presented at the same time as the disposition. Mr Stevenson appeared to advance a

criticism for delay in presentation of the 2003 disposition. It is notable that neither Mr Reid nor

Mr Macreath commented adversely on this matter. The defender explained that registration of

the 2003 disposition was held back until planning permission was secured. Mr Macreath

regarded this explanation as entirely reasonable, given that the small parcel of agricultural land

without any planning permission had in his view little value: see paragraph [113], above. The

pursuer had also referred to these arrangements as “making the house legal”. In my view, there

is no basis for criticism arising from the gap in time between the signing of the 2003 disposition

and its presentation for registration.

[145] The grant of planning permission to build a dwellinghouse on the land was subject

to a number of conditions, including a planning condition which imposed a restriction on

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the class of persons entitled to occupy the subjects. The planning condition was in the

following terms:

“Occupation of the dwelling shall be limited to a person solely or mainly employed

or last employed in the locality of [the farm] and as identified on the enclosed plan,

in agriculture as defined in Section 277(1) [of] the Town & Country Planning

(Scotland) Act 1997 or to a widow or widower, spouse, ascendants, descendants and

those living in family with such persons.” (Emphasis added.)

The local authority’s reason for imposing the planning condition stated that the subjects

were within an area identified in the development plan “as being inappropriate for new

residential development unless related to the essential needs of agriculture”. The planning

condition therefore restricted occupation of the subjects to someone “employed or last

employed” in “agriculture” (as defined) or to a specified relative “living in family” with

such a person. On the evidence led at proof, it is questionable whether the pursuer herself

would have complied with this condition at the time of the application for planning

permission. This may be a further reason why the 2003 disposition could not be registered

at the GRS until after planning had been secured and the house built, and why it was only

presented for registration at the same time as the disposition.

The parties’ respective contributions toward the subjects

[146] I have recorded above the somewhat curious passage in the pursuer’s pleadings,

averring that the defender was without resources. (See para [8(4)] above.) The pursuer also

averred that she made a substantial financial contribution to the construction of the dwelling

house. These averments have not been proved. They are inconsistent with the

unchallenged evidence that the pursuer was on income support and was not working at the

material time. The uncontested evidence was that the defender was a man of wealth. On

the pursuer’s own evidence, from about the early 2000’s the defender was regularly

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providing her with bundles of cash in substantial amounts (the sums of £1000, £5000, and

£10,000, were mentioned). The dispute between the parties is whether these were

unqualified gifts (as the pursuer contends) or were provided to the pursuer to spend on

materials and labour for the construction of the house. The pursuer also referred to gifts of

jewellery and a limited edition Saab from the defender. On this evidence he was no doubt a

generous man, but I do not accept the pursuer’s evidence that the sums were provided to

her for her to do with as she wished. Rather, these payments were described as having been

made in the context of a budding relationship and where the longer term plan was to build a

house together, even though the location for that had not yet been identified or agreed.

[147] There was a confusing passage in the evidence of the pursuer’s father, taken on

commission, to the effect that he may have paid for or contributed to the first payment (of

£47,000) toward a timber kit. (At two points on the first day of the Commission, Mr Barr

stated that he had received a cheque of £47,000 from the defender and had applied this

toward purchase of the timber kit: at pages 16 and 89 of the notes from the Commission.)

There was also some evidence that he or his sons had assisted in digging the foundations.

This is the only evidence that supports any contribution having been made by the pursuer or

her family, apart from the disposition of the 1.4 ha parcel of agricultural land. Otherwise,

there was unchallenged evidence that the defender used his expertise and resources to

secure planning permission to erect a dwelling house, and thereafter to obtain a building

warrant. The defender’s position, not seriously challenged, was that he had contributed all

or substantially all of the costs to the construction and fitting out of what became a two-

storey five-bedroom modern house. The pursuer conceded that he had “contributed a lot”.

The pursuer was living at the family farm, had a dependent child and had no income or

capital. Such evidence as there was about the relationship between the pursuer and her

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family, was suggestive of tensions, at the very least, and of enmity amongst her siblings and

a subsequent falling out of the pursuer with her whole family. It was not suggested that the

pursuer’s family was otherwise a family of means or one with disposable capital. While the

pursuer’s father provided the 1.4 ha of agricultural land, in the light of the whole evidence I

find that the defender contributed all or substantially all of the costs of the construction and

fitting out of the house. I also find that through his efforts and expenditure planning

permission for a dwelling house was secured which thereby materially increased the value

of the parcel of land disponed by the pursuer’s father to the pursuer. I will deal with the

question of the value of the subjects when I consider the evidence of the pursuer’s chartered

surveyor.

[148] In submissions Mr Stevenson suggested that it was improbable that the pursuer

would “give away her only asset”, namely the 1.4 ha parcel of agricultural land. However,

such evidence as there was tended to show that agricultural land, without the benefit of

planning permission (if it could be secured in respect of land of that character), had very

little worth. It might be considered equally improbable for the defender to expend effort

and considerable resources to secure planning permission and to build a dwellinghouse for

him and the pursuer to begin their life together without, at least, taking title in both parties’

names. The evidence I have accepted most naturally supports the inference that, as both

parties had made a contribution, title to the subjects was to be taken in both names.

Mr Donnachie’s evidence as to the valuation of the subjects

[149] The principal purpose of this evidence was to support the pursuer’s third conclusion,

which sought the sum of £375,000 as half of the market value of the subjects. (Neither party

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addressed me on the relevant date at which the subjects fell to be valued, if the pursuer’s

third conclusion were to be granted.)

[150] In submissions, Mr Sanders sought to challenge Mr Donnachie’s evidence. It is not

entirely clear on what basis he sought to do so. There was no comparable expert led by the

defender. There was no challenge to Mr Donnachie’s qualifications, experience or

methodology. I found him to be a careful and measured witness. It is entirely to his credit

and his professionalism, that he readily acknowledged the limits of his expertise (eg in reply

to questions concerning agricultural land values) and I do not regard this as a basis to

discount his evidence in any way. I also accept his evidence that the effect of the restriction

contained in the planning condition would materially reduce the market value of the

subjects, and which he had calculated to be a reduction by half of its market value. I have no

hesitation in accepting Mr Donnachie’s evidence in its totality. For aught yet seen, the fact

that it is a large house situated on land adjacent to a disgruntled former owner, in the form

of Mr Barr, may have a further depressive effect on the value of the subjects or, at least, their

marketability.

[151] The valuation may also assist on the question of ascertaining the quantum of parties’

respective contributions. As noted above, the valuation also stated the reinstatement value

of the subjects. Conventionally, this is the costs of rebuilding in the event the physical

structures on the land (in this case the dwelling house) are destroyed. The land value does

not generally form part of this figure, for the obvious reason that the land subsists.

Accordingly, a rough estimation of the value of the land itself (with the benefit of planning

permission) can be made by deducting the reinstatement figure of £545,000 from the market

value of £750,000. (There is an obvious coherence in comparing reinstatement and

construction costs.) In arithmetical terms, this attributes a value of about £205,000 to the

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land itself (with planning permission). This is broadly in accordance with Mr Donnachie’s

evidence that the land may contribute about a third of the value to the subjects. While

Mr Donnachie was unable to say what the value of the land was without planning

permission, Mr Macreath’s evidence was that this would be of very little worth.

[152] In light of this evidence I find that the defender’s efforts, especially in securing

planning permission, materially increased the value of the land itself. Furthermore, even

allowing for digging the foundations and a payment in the order of the figure claimed by

Mr Barr (£47,000), and about which the evidence was equivocal at best, it is clear that the

defender’s contribution was the most substantial in relative terms, and was very substantial

in absolute terms. Having regard to the figures in the valuation, in broad terms, the total of

the defender’s contribution may have equated to nearly 90% of the construction costs

whereas the pursuer’s contribution was about 11%. (The latter ratio is obtained by taking c

£60,000 as the contribution from the pursuer’s family (ie the payment of £47,000 towards the

timber kit and rounding this up to reflect some work on the foundations), as a proportion of

the reinstatement figure of £545,000. Having ascertained the percentage of the pursuer’s

contribution, namely of about 11%, by inference the defender contributed the remaining

89%.)

[153] This calculation, which is necessarily a broad estimate based on the available (and

limited) evidence, can be crosschecked against the value of the land. The value of the land

without planning permission was likely not to be a significant proportion of the estimated

value of the land with planning permission at £205,000. (As noted above, the value of the

land with planning permission may be ascertained, in general terms, by deducting the

reinstatement costs (of £545,000) from the full market value (of £750,000).) If the value of the

land with the benefit of planning permission was broadly £205,000 then, taking, say, 25% of

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that figure, as representing the value of the land without planning permission would

produce a value of c £50,000 for the parcel of agricultural land without planning permission.

(This rough approximation may be generous, given Mr Macreath’s evidence of the minimal

value of a small parcel of agricultural land without planning permission.) When the figure

of £50,000 (representing the value of the land without planning permission) is added to the

estimated figure of the £60,000 (reflecting the contribution of the pursuer and her family),

ie bringing about a total of c £110,000, this is still a very modest contribution relative to the

defender’s own. Whether the correct figure for comparison purposes is the full market

value of the subjects with the planning permission (ie of £750,000), or also taking into

account to the planning condition (reducing market value to the figure of £375,000), it is

evident that the contribution of the pursuer’s family was no more than 1/7th to 1/3rd of the

full or reduced market value. For present purposes, it suffices to note that this was

significantly less than half of the reduced market value of the subjects.

The expert evidence

[154] As noted above, the pursuer’s oral evidence bore no relation to her case on record.

Had matters rested with the pursuer’s evidence there would have been an unbridgeable gap

between that evidence and the premise of fact upon which her expert’s opinion was

predicated. On the evidence of some of the defender’s witnesses, I have nonetheless found

that the pursuer signed the disposition. In those circumstances, notwithstanding my

rejection of the pursuer’s own evidence, there is a basis in fact to which her expert’s evidence

could meaningfully be related.

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The experts’ respective areas of expertise

[155] There was no challenge to the credibility or reliability of either Mr Reid or Mr Macreath.

Rather the reverse, in that each readily acknowledged the standing and expertise of the other.

Mr Reid’s expertise was principally in the field of property and conveyancing whereas

Mr Macreath was pre-eminent in the field of disciplinary and conduct matters. Their respective

areas of expertise did not entirely coincide. However, as is apparent from their evidence, their

views converged considerably on certain matters.

The convergence of the experts’ opinion

[156] While Mr Reid initially took a more stringent view, he accepted that his overall

impression had been that the defender qua solicitor had obtained something for nothing: see

paragraph [54], above. In other words, in those circumstances he would have found the

solicitor to be in breach of fiduciary duty or negligence, notwithstanding the terms of the 2002

Code. However, he accepted that, on the hypothesis that there had been full consideration

provided by the solicitor, and so the transaction did not result in a gift or disposal at an

undervalue, a solicitor who had conducted himself in such circumstances was not necessarily

culpable or in breach of any relevant duty. Similarly, Mr Macreath would not have sought to

exonerate a solicitor who obtained a disposition in similar circumstances to the grant of the

disposition, if no equivalent value had been transferred. At the heart of it, both experts took

into account as a highly material factor whether the solicitor who was in a relationship with his

client and who transacted with her, benefited from the transaction at his client’s expense. In

short, both would have censured a gratuitous disposition; neither would have done so if there

was no such financial advantage to the solicitor at the expense of the client. While parties did

not approach the matters in this way, on the evidence, what the pursuer obtained in exchange

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for the grant of the disposition of the land (even giving her credit for the figure c £60,000 (from

her family’s physical labour and financial contribution, and therefore constituting a total

contribution of c £110,000 from the pursuer), was a one-half share in subjects worth either

£750,000 (at full market value) or £375,000 (taking into account the effect of the planning

condition). In short, she acquired more (or, if the full market value were relevant, significantly

more) in value than she contributed. This evidence is problematic, to say the least, for the

pursuer’s action, regardless of the particular legal ground or grounds founded upon.

Breach of fiduciary duty

[157] As I understood it, the pursuer’s essential criticism was that the defender placed

himself in a position where he had an interest in the pursuer’s grant of the disposition and

he had failed to insist that the pursuer obtain separate legal advice. (Mr Macreath

characterised this as a “strict liability” approach.) Mr Reid did not maintain his position, if

the defender had demonstrably given full value. On the evidence, I have found that the

defender did not obtain a financial benefit to the disadvantage of the pursuer. Rather,

assessed in the round, the pursuer benefited from the disposition when viewed in the

context of the defender’s financial contribution and his role in securing the requisite

planning and other permissions. In the light of the common position of the two experts,

there was scope for permissible conduct on the part of the defender consistent with this

evidence.

[158] Does this nonetheless constitute a breach of fiduciary duty?

[159] Mr Sanders relied on Aitken v Campbell’s Trustees 1909 SC 1217 (“Aitken”). In that

case, which also concerned a solicitor contracting with his own client, the Court held that

where a solicitor acted in a transaction outside a solicitor’s ordinary business (ie involving

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self-dealing with a client), then such transactions were to be subjected to the “closest

scrutiny” (at p 1225, per Lord President Dunedin) and the question posed: “would another

law-agent have advised it, or if the proposition had been made by a third party, would this

same law-agent have advised it to his own client?” (ibid, at p 1227). It must be noted that

Mr Stevenson did not address this case in his submissions (nor did he cite any other case as

providing the test for breach of fiduciary duty in the context of a civil action). Further,

neither of the experts was referred to or asked about this formulation. They were asked, in

effect, whether the circumstances would have constituted misconduct, although neither was

asked to comment on the different standard of proof (of beyond reasonable doubt)

applicable in the SSDT. Notwithstanding this, in the circumstances I have found proved,

and applying the test in Aitken, which is binding on me, the pursuer’s case for breach of

fiduciary duty is bound to fail. There is no evidence to support a finding that the Aitken test

was met; the convergence of views between Mr Reid and Mr Macreath pointed strongly

away from such a finding.

[160] For completeness, I did not find the evidence about other conflicts of interest (ie

where a solicitor acts for both parties in a transaction) to be of assistance. Nor did I find the

discussion about the test for misconduct, spoken to by Mr Macreath under reference to the

case of Sharp (or the more recent SSDT decision) to be of assistance. It respectfully seems to

me that the test in Aitken for misconduct (which is within the jurisdiction of the SSDT), is not

to be assimilated to that of breach of fiduciary duty although, of course, the same factual

basis may support both types of characterisations (in the respective fora of this Court and the

SSDT).

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Negligence

[161] I must now deal with the presentation of this case as one of professional negligence.

The evidence concerning this was very thin. The circumstances do not readily instruct a

case for professional negligence, which is more typically concerned with the exercise of

professional skill which is said to have fallen below an established standard and to amount

to conduct which no reasonably competent professional exercising due skill and care would

have done. Typically, such cases involve proof of the three limbs of the Hunter v Hanley test.

(To the extent that there was a conflation by Mr Reid of the distinctive features of a case for

negligence and one for breach of duty, this flowed from questions posed by Mr Stevenson

assuming or inviting such a conflation. Mr Stevenson appeared to proceed on the basis that

the obligations in the 2002 Code were interchangeable with the test in Hunter v Hanley.)

Such evidence as there was in this case, militated against the test of negligence being met. I

have in mind the terms of the 2002 Code, quoted at paragraph [59], above. The presence of

the words “where appropriate” and “should” are necessarily inconsistent with a contention

that no reasonably competent solicitor exercising due skill and care would have failed to

insist that the pursuer should have got separate legal advice and was otherwise obliged to

refuse to act. To the extent that Mr Reid’s evidence was to be understood as adhering to the

initial view expressed in his report (eg as recorded at para [48], above), I prefer

Mr Macreath’s evidence on this matter. Mr Reid’s evidence was not entirely consistent with

the 2002 Code and, to the extent there was a basis for his stricter view, this was founded on

his ipse dixit but unsupported by reference to other any cases or examples. It is likely to be

the case that what Mr Reid commended was in accordance with good or best practice, but

departure from that does not necessarily instruct a case of negligence. I prefer the more

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nuanced evidence of Mr Macreath, which was supported by reference to his understanding

of practice in the profession.

[162] It follows that the pursuer’s case on negligence also fails.

Misrepresentation or negligent misrepresentation

[163] I have already determined that as a matter of fact there was no misrepresentation, as the

pursuer contended. Properly analysed, what the pursuer was seeking to prove was an

intentional misrepresentation. It is in my view inapt to characterise that as a “negligent

misrepresentation”, as Mr Stevenson sought to do in his submissions. In any event, there was

no evidence to support this contention, no analysis of the relevant case law and no considered

submission to support this. I also find that this ground of challenge, even if available as a free-

standing ground on the pursuer’s pleadings, fails.

The third conclusion

[164] Mr Stevenson also moved for the third conclusion in the alternative to that for reduction.

As the pursuer’s case was presented, the same matters were founded upon for both conclusions.

It follows that the pursuer has failed to establish any basis for the third conclusion, and this also

falls to be refused.

Reduction as an equitable remedy

[165] Both parties accepted that the remedy of reduction is an equitable remedy and that

the court may take into account facts and circumstances not directly related to the merits or

subject-matter giving rise to the parties’ action. So, for example, the acquisition of rights by a

third party in good faith and for value in the subjects (eg such as a heritable creditor), had

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this occurred, is likely to have been a relevant factor in the exercise of the court’s discretion

to grant or refuse reduction. It is therefore appropriate that I indicate the factors I would

have taken into account in considering whether or not to grant the remedy of reduction, had

I found that the pursuer established a basis for the same.

[166] What follows proceeds on the hypothesis that the pursuer had established a breach of

fiduciary duty. In considering whether or not to grant reduction, I would have had regard to

the following:-

1) The parties’ respective contributions to the subjects: The pursuer’s rhetorical plea in

her evidence was to ask: “why would I give away half my land?”. In truth, on the

evidence, this would not have been to give away very much. The import of the

available evidence was that a small parcel of agricultural land without the benefit

of planning permission was worth very little. The pursuer led no evidence to the

contrary, that is, to prove that the land conveyed by the disposition had any

substantial value, even absent any planning permission. I refer to the findings I

have made about the parties’ respective contributions to the value of the subjects.

Accordingly, had it been established that there was an absolute restriction on the

defender acting for the pursuer in respect of the disposition where he was also

one of the disponees, and that that constituted a breach of fiduciary duty, I would

nonetheless have regarded it as inequitable to grant reduction, given the very

substantial contribution the defender made to the increase in the value of the

subjects (by obtaining the requisite consents and funding substantially the whole

of the construction costs). Putting it another way, the effect of breach of any such

fiduciary duty had not, on the evidence I have accepted, resulted in any financial

disadvantage to the pursuer. Indeed, the effect of the reduction would in effect

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be to grant the pursuer a windfall, to the extent that the value of what she

received exceeded her contribution. In those circumstances, any such breach was

technical rather than prejudicial in character. (I am not to be understood as

suggesting that the latter feature is a necessary element to establish breach of

fiduciary duty or that its absence proves there was no breach. I do regard the

question of prejudice to be a relevant circumstance to which regard may be had at

the stage of considering the grant of the remedy of reduction.)

2) The impermissibility of these proceedings constituting a de facto undermining of the 2015

decree: The defender holds a decree in his favour, confirming his right (which is

available to any common owner of subjects) to sell the subjects and divide the

proceeds according to the parties’ respective rights thereto. That decree was a

decree in foro in proceedings in which the pursuer was legally represented

throughout. Moreover, the pursuer’s appeal was refused, and the 2015 decree is

final. On the authorities, a party must demonstrate “exceptional circumstances”

to reduce a decree in foro. If granted, the decree of reduction of the disposition

would render the 2015 decree otiose, but without meeting this high test. It

respectfully seems to me that these proceedings are being used as an

impermissible means to elide the 2015 decree and to deprive it of its efficacy.

Mr Stevenson’s only answer, when the matter was raised with him on the first

morning of the proof, was to suggest that the decrees wouldn’t be inconsistent:

the defender could no longer sell the subjects if he had no title. In my view, this

fails to appreciate or address the fundamental objection of this aspect of the

pursuer’s case.

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3) The undesirability of inconsistent decrees: Separate from the factor just noted, I

would have regarded it as legally repugnant for there to be inconsistent decrees

pronounced by two courts in the same jurisdiction. This, it respectfully seems to

me, undermines the virtues of finality and certainty that should attend a final

decree, such as the 2015 decree.

4) The unexplained and irreconcilable differences between the pursuer’s positions in the

defender’s action and in these proceedings: In any event, it is deeply troubling that

the pursuer could participate in the defender’s action (with the benefit of legal

aid), assert a certain state of affairs in those proceedings and permit decree to pass

and thereafter raise separate proceedings (again, with the benefit of legal aid) on a

factual premise that is radically inconsistent with the position she adopted in

those earlier proceedings. (Had this been disclosed to or appreciated by the

Scottish Legal Aid Board, it is questionable whether she would have received

legal aid to raise these proceedings.) In respect of these proceedings, her pleaded

case was that she had been deflected by the defender’s misrepresentation from

reading the disposition and that it was never her intention to dispone a one-half

share to the defender (the evidence about the inconsistency between that stance

and her position in the defender’s action has been noted above, at paras [35] and

[37] to [41]). Her oral evidence, to the effect that her signature on the disposition

was either a forgery or fraudulently appended, presented an even more radical

departure from her stance in response to the defender’s action. This volte face was

never explained. (It was not suggested that the first solicitor, Lynn Collingham,

had laboured under a mistake of fact.) I would have regarded this as a very

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material factor in the exercise of the court’s discretion to refuse the remedy of

reduction.

In the light of these factors, viewed individually and collectively, I would have refused to

grant decree of reduction had the pursuer established breach of fiduciary duty.

Prescription

[167] In the light of my findings, I do not need to address the question of prescription in

any detail. Mr Stevenson conceded that if his case were based on negligence, then the

pursuer’s action had prescribed by reason of the expiry of the five-year negative prescriptive

period. Mr Sanders elicited evidence from the pursuer, noted above at paragraph [42], to the

effect that the pursuer had been aware of a claim against the defender and a loss sustained

by his conduct, more than five years before the raising of this action. This would have

sufficed to refuse the pursuer’s third conclusion based on this ground.

[168] In relation to characterisation of the defender’s conduct as a breach of fiduciary duty,

I did not have the benefit of full submissions under reference to the case law or of considered

analysis of the provisions of the Prescription and Limitation (Scotland) Act 1973 (“the 1973

Act”). Mr Sander’s position was that a breach of fiduciary duty was subject to the 5-year

negative prescription. (He referred to para 1(d) of schedule 1 to the 1973 Act and he

produced the case of Khosrowpour v Taylor [2018] CSOH 64.) Mr Stevenson hazarded that as

this was a disposition under reduction, this may be an obligation “relating to land” to which

the twenty-year long negative prescription applied. (He referred to para 1(2)(e) of schedule 1

to the 1973 Act, to para 6 of JAL Fish Ltd Small Self-Administered Pension Scheme, Trustees Law

& Others v Robertson Construction Eastern Ltd [2018] CSIH 24, to the effect that this phrase was

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apt to cover a wide range of obligations, and to the example in para 2.54(i) of the Scottish

Law Commission Discussion Paper 160 (on prescription) of 2016.) Other than Mr Sanders’

brief reference to schedule 3 of the 1973 Act (specifying imprescriptible obligations), which

he rejected out of hand, neither party addressed the possibility of the fiduciary obligations

owed by the defender qua solicitor as falling within one of the classes of imprescriptible

obligations.

[169] The characterisation of the obligation in question for the purposes of the 1973 Act is a

question of some subtlety. I am not persuaded that either Mr Sanders or Mr Stevenson is

correct in his submissions on this issue. It suffices for present purposes to observe that the

meaning of “reparation”, where it appears in schedule 1(1)(d) of the 1973 Act, has been

authoritatively construed by the First Division in Miller v Glasgow DC 1988 SC 440, a case

which is binding on me but which neither party cited. In Miller, the court confirmed the

technical meaning of “reparation” in Scots law (per Lord President Emslie at p 444: “From

the authorities to which we were referred it is apparent that the word is used in the sense of

reparatio injuriarum, and is a pecuniary remedy which the law of Scotland affords for a loss

caused by a wrong”) and it held that that word was not given any special or wider meaning

in the 1973 Act. In other words, “reparation” is confined to payment of damages. It does not

include specific implement (see Miller) and, by a parity of reasoning, it would not include

reduction. Insofar as the pursuer’s action is predicated on the remedy of reduction, it does

not fall within paragraph 1(d) of schedule 1 to the 1973 Act. Accordingly, Mr Sanders is

wrong in his principal submission that the pursuer’s case for reduction has prescribed by

operation of the short negative prescription. The defender’s plea to prescription falls to be

repelled quoad the pursuer’s first conclusion. However, in the absence of considered

submissions and full reference to the relevant authorities, I refrain from expressing any view

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on the question of the characterisation of the obligation in question or the provision within

which it falls in the 1973 Act. In the light of my other findings, this view would in any event

be obiter.

Decision

[170] In the light of the foregoing, the pursuer’s action fails and decree will be pronounced

to give effect to this decision. As requested, I reserve meantime the question of expenses.