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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> ANDERSON, RECLAIMING MOTION BY ILENE ANDERSON AND ANOTHER AGAINST GEORGE DAVIDSON WILSON [2019] ScotCS CSIH_4 (30 January 2019)
URL: http://www.bailii.org/scot/cases/ScotCS/2019/[2019]_CSIH_4.html
Cite as: 2020 SCLR 105, 2019 SC 271, 2019 GWD 4-51, [2019] CSIH 4, 2019 SLT 185, [2019] ScotCS CSIH_4
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President
Lord Menzies
Lord Brodie
[2019] CSIH 4
CA89/17
OPINION OF THE COURT
delivered by LORD MENZIES
in the Reclaiming Motion by
ILENE ANDERSON AND ANOTHER
Pursuers and Reclaimers
against
GEORGE DAVIDSON WILSON
Defender and Respondent
Pursuers and Reclaimers: Martin QC, Beynon; Lefevre Litigation
Defender and Respondent: Sandison QC, Cowan; Burness Paull LLP
30 January 2019
Introduction
[1] Thomas Paterson (“the deceased”) was a dairy farmer on the Cobairdy Estate near
Huntly. He died on 21 April 2016. He was survived by five daughters. The pursuers are
two of these daughters; the defender is the husband of one of the other daughters. By
disposition dated 9 October 2011 the deceased disponed to the defender about 255 acres of
the Cobairdy Estate. In early December 2011 the deceased gifted each of his five daughters
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the sum of £30,000 under explanation from his wife that “a bit” of the estate had been sold to
the defender.
[2] By will executed on 17 October 2012 the deceased left his estate to his wife, provided
she survived him for 30 days after his death, whom failing to so survive to his five
daughters equally amongst them. By will dated the same date the deceased’s wife made
essentially the same provision, leaving her estate to the deceased, provided that he survived
her for 30 days after her death, whom failing to so survive to her five daughters equally. On
the death of the deceased his estate passed to his wife. His wife died on 22 November 2016.
The pursuers, as two of the five daughters, are beneficiaries in terms of her will.
[3] The present action was raised on 28 July 2017.
These proceedings
[4] Each of the pursuers seeks two remedies against the defender – (a) payment of
damages plus one-fifth of the Capital Gains and Inheritance Tax liability together with
interest and likely penalties together with interest thereon, and (b) declarator that the
defender is under an obligation to pay to each pursuer a sum representing one-fifth of tax
and other losses sustained by the estate of the deceased’s widow caused by the sale of the
agricultural land at Cobairdy Estate by the deceased by disposition dated 9 October 2011 in
favour of the defender. The pursuers aver that the sale of the land in October 2011 was at
gross undervalue. It is averred that the actual consideration paid for the land was £420,000,
and that the actual or likely market value of the land was approximately £1,050,000. The
pursuers aver that the deceased left his whole net estate to his wife. The deceased’s wife left
her net estate in five equal portions to the pursuers and her other three surviving daughters.
The value of the land remained the same as at the date of the death of the deceased’s wife in
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2016 as it was in 2011. The pursuers each claim damages amounting to one-fifth of the
difference between £1,050,000 and £420,000, ie £126,000 on the death of their mother. They
also aver that as a result of the disposition in October 2011 the deceased’s estate will have to
pay Capital Gains Tax of £10,000, which will have the effect of diminishing (a) the value of
the estate passing from the deceased to his late wife’s estate and (b) under and in terms of
the deceased’s wife’s will the net bequests to the pursuers. They also claim that as a result of
the disposition the deceased’s wife’s estate cannot benefit from agricultural property
relief/entrepreneurial tax relief, resulting in further loss to each pursuer relative to the equal
bequest to each of them from their mother.
[5] When the matter came before the commercial judge for debate, the pursuers sought
damages from the defender on three bases:
“(1) Intentional delict. The defender deliberately, and without legal justification,
arranged for the deceased to execute the said Disposition at a price
approximately one-half of the subject’s actual or likely market value ... the
defender’s conduct constituted fraud.
(2) Facility and circumvention. At the time of the execution of the disposition,
the deceased was in a facile ie weak condition ... his will was overcome by the
defender when signing the disposition.
(3) Undue influence. ... At the material time the defender exercised over the
deceased a dominant or influential ascendancy exercised by the defender
contrary to law.”
[6] At debate the defender submitted (1) that the pursuers had no title to sue, (2) that the
action had prescribed in terms of section 6 of the Prescription and Limitation (Scotland) Act
1973, (3) that the pursuers’ pleadings were so lacking in specification as to be irrelevant, and
(4) that damages were not a competent remedy where facility and circumvention or undue
influence were the bases of the action.
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[7] In his opinion dated 30 January 2018 the commercial judge held that the case of fraud
was irrelevant. In addition, he held that the pursuers had no title to sue on any of the bases
relied upon – they did not stand in a legal relation to the defender which gave them some
right which the defender infringed. He held that the remedy of damages was not a
competent one in a claim based on either facility and circumvention or undue influence. He
rejected the defender’s prescription argument. By interlocutor of the same date he
dismissed the action. It is against that interlocutor that the pursuers now reclaim.
[8] The pursuers and reclaimers do not challenge the commercial judge’s decision with
regard to dismissal of the fraud case. Their submissions before this court were confined to
(a) title to sue and (b) the competency of damages as a remedy. The defender and
respondent has a cross-appeal against the commercial judge’s decision to reject the
prescription argument.
Submissions for the parties
Pursuers and reclaimers
[9] Senior counsel for the pursuers and reclaimers began by noting that there had been
submissions before the commercial judge about the tripartite test in Caparo Industries plc v
Dickman [1990] 2 AC 605, and the commercial judge dealt with these submissions (although
observing that it was perhaps not necessary to look at the Caparo test in further detail given
his decision). The decision in Caparo had nothing to do with a case of facility and
circumvention or of undue influence. He submitted that the commercial judge had not
carried out any proper analysis of title to sue in a case based on facility and circumvention
or undue influence. The closest that he got to this was at paragraphs [95] and [96] of his
Opinion, but there was no detailed analysis of the issue of title to sue in a situation where
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the claim is being made by a beneficiary. Senior counsel also submitted that the commercial
judge did not carry out a full analysis of whether or not damages might be a competent
remedy for facility and circumvention or undue influence; if these were a genus of fraud,
and if damages were available for fraud, logically damages ought to be available as a
remedy in respect of facility and circumvention or undue influence.
[10] On the issue of title to sue, senior counsel submitted that although facility and
circumvention was originally treated as a form of fraud, now Scots law recognises this as
something different and does not require the high standard of averment which is required
for other forms of fraud – see McBryde, The Law of Contract in Scotland (3rd ed) paras 16-01 to
16-12. Where a deed granted by a deceased person is challenged on grounds of facility and
circumvention (or undue influence) after his death, title will always depend on events which
have occurred after the deed was granted. The title and interest of the person who seeks to
challenge the deed will depend upon the deceased having died in a situation where the
person challenging became his lawful beneficiary. That will depend in particular upon the
deceased not having granted a subsequent will in favour of a different beneficiary. In other
words, no title and interest can exist in a situation such as the present at the time that the
deed is granted (other than in favour of the deceased himself). The subsequent title and
interest of a beneficiary will always come into existence only later and upon the death of the
deceased.
[11] Senior counsel accepted that the deceased’s executor would have had title to sue. He
asked why the executor of the deceased’s widow would not have title to sue? There might
be more than one link in the chain, which might include beneficiaries and issue of
beneficiaries. He referred us to the well-known dictum of Lord Dunedin in D&J Nicol v
Dundee Harbour Trustees 1915 SC (HL) 7, where he observed (at 12-13):
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“... I am not aware that anyone of authority has risked a definition of what
constitutes title to sue. I am not disposed to do so, but I think it may fairly be said
that for a person to have such title he must be a party (using the word in its widest
sense) to some legal relation which gives him some right which the person against
whom he raises the action either infringes or denies”.
It was submitted that the pursuers could be said to be in a legal relation with the defender,
because, as beneficiaries of the deceased’s beneficiary, they claim the defender infringed
their right to the full value of the deceased’s estate. There was no logical difference between
the position of an executor and that of beneficiaries – if an executor has title to sue, there is
no reason why a beneficiary should not. In answer to questions by the court, senior counsel
submitted initially that a beneficiary can recover a debt due to the estate; however, when
faced with the decision of the Inner House in Morrison v Morrison’s Executrix 1912 SC 892 he
accepted that a beneficiary did not have title to sue for a debt due to the deceased’s estate.
Reliance was also placed on Cleugh v Fleming and others 1948 SLT (Notes) 60; Matossian v
Matossian [2016] CSOH 21; and Neville v Donald [2016] CSOH 6.
[12] Senior counsel submitted that in a case of facility and circumvention and undue
influence, title and interest may only crystallise after the event. In the present case, the
pursuers have averred an identifiable entitlement to share in an estate which was
diminished by the disposition. The concept of remoteness is not applicable to title to sue; as
long as the pursuers can demonstrate, by one or more links, an entitlement to ensure a
proper division of the estate, they will have title to sue. So far as interest is concerned, the
pursuers must aver a material detriment in their challenge to the disposition as being
granted at undervalue (and they do so in this case). The commercial judge’s approach to
title and interest was at odds with his views on the issue of prescription when considering
the need for concurrence of damnum and injuria – the pursuers accept the commercial judge’s
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statement of the law at paragraph [63] of his Opinion, and submit that this ought logically to
apply to the issue of title and interest in favour of the pursuers.
[13] Turning to the issue of whether damages were available as a remedy for facility and
circumvention and undue influence, senior counsel accepted that he could point to no
authority which clearly stated that damages were available. He drew our attention to
McBryde (op. cit.), and to the last sentence of paragraph 16-11 in which the author, dealing
with facility and circumvention, expressed the view that “in the absence of fraud it is
probable that damages cannot be obtained and remedies are limited to challenge of the deed
and, where appropriate, unjustified enrichment.” Similarly with regard to undue influence,
the author expressed the view (at para 16-36) “... there is no authority to suggest that
damages are a competent remedy for undue influence.” However, the observations of Lord
Sorn in Cleugh v Fleming (supra) suggest that the court considered that a person who is
aggrieved by facility and circumvention should have a remedy. There was no reason in
principle why that remedy should not include damages resulting from the wrongful acts of
facility and circumvention. It was submitted that facility and circumvention and undue
influence should properly be regarded as a civil wrong, and if that is correct, damages
would be a competent remedy – McGregor on Damages (20th ed) at paras 1-004 and 1-020, and
the discussion by Peter Birks “Unjust Factors and Wrongs: Pecuniary Rescission for Undue
Influence” 1997 RLR 72. The commercial judge should not have held the pursuers’ claim for
damages to be incompetent – damages were an alternative remedy to reduction, and were a
competent and appropriate remedy in respect of both facility and circumvention and undue
influence in the present case. He invited the court to allow the reclaiming motion, recall the
Lord Ordinary’s interlocutor of 30 January 2018, repel the defender’s first and third pleas-in-
law directed towards title to sue and relevancy, and allow a proof before answer.
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Defender and Respondent
[14] With regard to title to sue, senior counsel for the defender and respondent submitted
that there was a tripartite test to be applied in the present case – not that discussed in Caparo,
but in the passage from Lord Dunedin’s speech in D&J Nicol quoted above. He argued that
the three elements required for a person to have title to sue are: (1) he must be a party (using
the word in its widest sense) to some legal relation; (2) this must give rise to some right; and
(3) that right must be the right which the person against whom he raises the action either
infringes or denies.
[15] The pursuers were in error in suggesting that the right of beneficiaries to the estate of
a deceased was a right to determine what the estate comprised. Properly analysed, a
beneficiary’s right is to succeed to the deceased’s estate however that may be constituted. It
does not extend to a right to seek that the estate is comprised of a particular sort of property
or extent.
[16] In the present case the only possible relevant legal relation enjoyed by the pursuers
(which was achieved by them long after the acts complained of) was a right to inherit from
their mother’s estate, howsoever that estate might be composed when the succession to it
opened. That is not a right which the defender is said to have infringed or denied.
Likewise, the only relevant right their mother had was a right to inherit from her husband’s
estate, howsoever that estate might be composed when the succession to it opened. That too
is not a right which the defender is said to have infringed or denied. The right which the
defender is said to have infringed might best be described as the right of the pursuers’ father
to have decisional autonomy in the conduct of his affairs. He undoubtedly had title to sue in
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respect of that claimed infringement. That title may have passed to his executors, and it may
still inhere in them; it does not, however, inhere in the pursuers.
[17] The right which the pursuers claim was infringed was not a right to succession at all
– it was the right of the deceased, not his beneficiaries. Accordingly, any right to complain
about the granting of the disposition rests with the deceased’s executor, not his beneficiaries.
It is not competent for beneficiaries to seek to collect a debt owed to the estate of the
deceased – Morrison v Morrison’s Executrix, supra, particularly per Lord President Dunedin at
895.
[18] In the present case the pursuers are not even at one remove from the deceased – they
are beneficiaries in terms of the deceased’s widow’s will, and the deceased’s widow was the
beneficiary in terms of the deceased’s will. Any title to sue rested with the deceased’s
executor. In addition, the pursuers have no title to sue because they do not stand in a legal
relation to the defender which gives them some right which the defender infringed. The
cases of Matossian and Neville to which the pursuers and reclaimers referred were each
brought at the instance of an executor or attorney; they support the defender, not the
pursuers.
[19] With regard to the availability of damages as a remedy, the commercial judge was
correct to hold that this was not a competent remedy in the particular circumstances of
facility and circumvention and undue influence in the present case. Senior counsel did not
suggest that in no circumstances could damages be competently sought, but in the
circumstances of this case, in which fraud has now disappeared, there were not sufficient
averments of a civil wrong, and therefore there was no right to damages (although there
might be a right to restitutional remedies such as reduction, an award for the enjoyment of
the benefits of the land since the disposition, or possibly pecuniary restitutional remedies to
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restore unjust enrichment). These were not damages – they focused on enrichment to the
defender rather than damage to the pursuers.
[20] In modern usage, facility and circumvention and undue influence are descriptive of a
situation which may arise in a number of ways. They may be achieved by means of a civil
wrong, such as breach of contract or breach of fiduciary duty, or misrepresentation or
duress. However, there may be circumstances in which they are achieved innocently,
without the commission of a wrong; facility and circumvention is to be assessed objectively
rather than subjectively, and there is no need to establish intention. Undue influence can
arise from the most innocuous circumstances without any wrongful act. Senior counsel
accepted that if facility and circumvention or undue influence were to be achieved by a
wrongful act, damages would flow. However, if no wrongful act has been committed, there
is no right to damages. Looking to the pursuers’ pleadings in article IX.2 relating to facility
and circumvention, and article IX.3 relating to undue influence, the pursuers do not offer to
prove a civil wrong. All that they offer to prove is that the deceased granted a deed which
he would not have done. These averments do not justify an award of damages, but only a
restitutional remedy. Senior counsel relied on the passages already referred to in McGregor
on Damages and in the article by Peter Birks in 1997 RLR 72, and also on Banque Keyser
Ullmann SA v Skandia (UK) Insurance Co Limited [1990] 1 QB 665, particularly at
pages 779/780.
[21] The intentional delict aspect of this case having been deleted, the pursuers’
averments are vague, inspecific and do not amount to an offer to prove a civil wrong, so
there is no remedy in damages. In any event, the weaker alternative rule applied – if the
actions complained of may or may not amount to a civil wrong, then damages were not
available. The Lord Ordinary was accordingly correct to hold that the pursuers’ pleadings
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were irrelevant as they only sought damages. The case is founded on claimed obligations of
reparation, so all the conclusions are inept.
[22] With regard to the issue of prescription raised in the cross reclaiming motion for the
defender, senior counsel asked the rhetorical question – if there is a right of action in a
beneficiary to sue for reparation, when was the concurrence of damnum and injuria? The
action was raised on 28 July 2017. The latest date on which any wrongful conduct on the
part of the defender could have occurred was the date on which the disposition was
executed, ie 9 October 2011. The loss in respect of which the pursuers complain is the
diminution effected in the value of the estate of their mother, which in turn flowed in its
entirety from the earlier diminution in the value of the estate of their father said to have
been caused by the wrongful acts of the defender. Damnum must have occurred when the
value first left the deceased’s estate, namely in October 2011. The commercial judge erred in
law in holding that there was a conjunction of damnum and injuria only on the date of the
mother’s death. That event resulted in no alteration in the value of the estate, nor did the
death of the deceased. Any diminution in the value of the estate occurred in October 2011,
and accordingly the pursuers’ right of action prescribed in October 2016.
[23] The pursuers’ argument to the contrary was fallacious. If the mansion house at
Cobairdy had been destroyed by fire as a result of the defender’s negligence, on the
pursuers’ argument there would effectively be no prescriptive period, as the prescriptive
period would start again when each beneficiary died. This cannot be correct.
[24] The pursuers could not rely on the terms of section 11(3) of the Prescription and
Limitation (Scotland) Act 1973. The pursuers accepted that they were aware that a portion
of the lands were sold in 2011, and each of them was given a sum of money at about that
time and told that this came from the sale of land. The fact of the sale, the extent of the land
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sold, the price and the identity of the purchaser were all matters of public record; all these
items of information could have been ascertained in 2011, as could the alleged undervalue.
Section 11(3) does not postpone the start of the prescriptive period until a creditor of an
obligation is aware actually or constructively that he or she has suffered a detriment in the
sense that something has gone awry rendering the creditor poorer or otherwise at a
disadvantage. The creditor does not have to know that he or she has a head of loss. It is
sufficient that a creditor is aware that he or she has not obtained something which the
creditor had sought or that he or she had incurred expenditure – Gordon’s Trustees v Campbell
Riddell Breeze Paterson LLP 2017 SLT 1287, particular at paragraphs [18] to [22].
[25] The commercial judge accordingly ought to have held that any case which the
pursuers might otherwise have had had prescribed, and granted decree of absolvitor
accordingly.
Response for the pursuers and reclaimers
[26] Senior counsel for the pursuers and reclaimers submitted that the argument for the
defender that in no circumstances did a beneficiary in terms of a will have a right to do
anything after the date of death, including trying to recover a debt due to the estate or
seeking to reduce a transaction impetrated by fraud, went too far. There are circumstances
in which a beneficiary may have a direct right of action – for example, a beneficiary under an
earlier will may have a right to challenge a subsequent will. Morrison v Morrison’s Executrix
was the only authority for the proposition that a beneficiary on the executry estate of a
deceased was not entitled to sue for a debt due to the estate, and there was no substantive
reasoning as to why the court reached that conclusion. In any event, that case raised
procedural possibilities which might enable the present action to continue, albeit in the
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name of the executor, even if the submissions for the pursuer on title to sue were wrong.
Senior counsel submitted that the pursuers have met Lord Dunedin’s test in D&J Nicol v
Dundee Harbour Trustees (at page 12/13); there was nothing in that test which would deny the
pursuers the right to pursue the defender in the present case.
[27] With regard to the availability of damages as a remedy, it was now accepted on
behalf of the defender that there may be cases of facility and circumvention or undue
influence in which it is competent to seek damages, although these may be confined to cases
involving some sort of moral turpitude on the part of the person who induced the
disposition or other disposal. Even if there is no right to damages, it is now accepted on
behalf of the defender that there may be restitutional remedies. The question of competency
therefore no longer arises – the issue is simply one of relevancy. The commercial judge held
that there were sufficient averments made to amount to a relevant allegation of
circumvention, and his conclusion in this regard (and similarly his conclusion that a relevant
case of undue influence was averred) is not attacked by the defender. The remedy of
damages cannot be rejected at this stage as incompetent.
[28] With regard to prescription, senior counsel accepted that he needed to point to a date
at which there was concurrence of damnum and injuria. This occurred at the earliest when
the executor of the widow of the deceased took office, ie some time after the widow’s death
in 2016. Before that date the pursuers were only in the position of parties who could,
potentially, suffer loss. The reasoning of the commercial judge at paragraph [63] of his
Opinion was sound. At the date of the disposition the deceased had made no will in favour
of either pursuer; after the execution of the deceased’s will in favour of, among others, the
pursuers he could have altered his will so as to exclude the pursuers as beneficiaries
thereunder; and finally prior to the death of the pursuers’ mother, she could equally have
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altered her will excluding the pursuers as beneficiaries. It is only at the point when the
pursuers’ mother dies and there is a will in place whereby the pursuers inherit that loss that
damage crystallises and there is thus conjunction of damnum and injuria.
[29] In any event, in terms of section 11(3) of the Prescription and Limitation (Scotland)
Act 1973, the pursuers have averred a relevant case. At the time of the disposition the
pursuers had no reason to apprehend that a sale at gross undervalue had taken place and
reasonable diligence did not require them to carry out enquiries at that time. Moreover, the
knowledge of the deceased was material for the purpose of section 11(3); standing his
facility, the extent to which the deceased could be said to have been aware of the fact that he
was granting a disposition of his land at gross undervalue was a matter of fact which
required to be determined after proof.
Decision
(i) Title to sue
[30] A beneficiary on the executry estate of a deceased is not entitled to sue for a debt due
to the estate – Morrison v Morrison’s Executrix 1912 SC 892. The executor of a deceased’s
estate has the duty of ingathering that estate. If there are debts due to the estate, or if there
have been improper alienations from it, title to sue for the recovery of these rests with the
executor, and not with the beneficiaries of the deceased’s estate. In some circumstances it
may be possible for the beneficiary to sue in the name of the executor where the executor
will not raise an action which a beneficiary seeks to raise. However, there is no suggestion
that such a course of action has been sought or attempted in the present case.
[31] We agree with the submission by senior counsel for the defender and respondent
that the right of beneficiaries to a deceased’s estate does not amount to a right to determine
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what the estate constitutes. The right of the beneficiaries is to inherit the estate as it is. The
right to determine what is in the estate – its composition and extent – rests with the executor
as the representative of the former proprietor of the estate. It is necessary to consider what
is the nature of the right which the pursuers allege to have been infringed. There is no right
of succession which is averred to have been infringed; rather, it is the right of the deceased
himself which is averred to have been infringed, not a right of his beneficiaries. Title to sue
(by whatever remedy is sought) rests with the executor, not with the beneficiaries.
[32] This is particularly so in the present case, where the pursuers are seeking to found a
title to sue as beneficiaries of the deceased’s beneficiary. In the circumstances which
occurred, the deceased left his whole estate to his widow. The deceased’s executor did not
challenge the disposition, nor did the deceased’s sole beneficiary, namely his widow. When
the deceased’s widow died, her executor did not challenge the disposition. The pursuers, as
beneficiaries in terms of the widow’s will, now seek damages in relation to the granting of
the disposition. They have no title to do this.
[33] When the deceased granted the disposition on 9 October 2011 he had not prepared a
will. He did not execute his will until 17 October 2012. As at 9 October 2011 the pursuers
were not a party to some legal relation which gave them some right against the defender.
They were not even co-beneficiaries or more loosely connected in some way through the will
of the deceased, because the deceased had not executed any will at that time, and did not do
so for more than a year thereafter. As Lord Dunedin observed in D&J Nicol v Dundee
Harbour Trustees, “I think it may fairly be said that for a person to have such title he must be
a party (using the word in its widest sense) to some legal relation which gives him some
right which the person against whom he raises the action either infringes or denies.”
Despite the eloquent submissions for the pursuers and reclaimers, and even using the word
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in its widest sense, we are unable to conclude that the pursuers were a party to any such
legal relation. They have no title to sue. The commercial judge was correct to sustain the
defender’s first plea-in-law.
[34] We are reinforced in that view by considering the decision of the UK Supreme Court
Craighead DPSC at paragraphs 80-84 and Lord Rodger of Earlsferry JSC at paragraphs 87-
93. As Lord Rodger observed (at para 87):
“Unquestionably, the general rule is that the beneficiary of a trust cannot sue a
debtor of the trust: the relevant right of action is vested in the trustees and it is for
them to enforce that right by raising an action, if appropriate. Where the trustees
decline to take proceedings but the beneficiary insists, he can require them to assign
the right of action or to permit him to use their name, provided that he gives them an
indemnity for any liability for expenses.”
At paragraph 88 Lord Rodger referred to the Opinion of Lord Shand in Rae v Meek (1888) 15
R 1033 at 1050-1051:
“If the trustees do not think fit to raise an action against the debtors for certain debts,
having doubts it may be how far they may be certain of success, is it for a beneficiary
or beneficiaries to do so in their own name? I think they have no such right. And I
do not think this is a matter of mere form; it is, in my view, a matter of substance,
because if the law were otherwise, then the debtors of trust-estates, including
amongst them law-agents who may have been employed by the trustees, would be
liable to actions at the instance of many different persons – of anyone having a
beneficial interest in the trust-estate – requiring them to pay the amount of their
debts to the trustees. I think such actions are not competent, and that the only
persons who can maintain actions to recover debts due to an executry or trust-estate
are the administrators of the estate, the trustees or the executors.”
[35] As we have observed, not only were the pursuers not parties to any legal relation
which gave them some right which the defender infringed or denied, but none of the
possible steps discussed in Morrison v Morrison’s Executrix and Roberts v Gill & Co have been
taken in the present case. We should add that we did not find the cases of Cleugh v Fleming,
Matossian and Neville to be of assistance to us.
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[36] Our decision in relation to title to sue is sufficient to dispose of this reclaiming
motion, which must be refused. However, standing the submissions made on the other two
issues raised, we shall express our views on these issues briefly.
(ii) The availability of damages as a remedy
[37] The remedy which one would normally expect to see pursued where a disposition
has been obtained as a result of facility and circumvention or undue influence is reduction of
that disposition. There is no conclusion for reduction of the disposition in the pleadings
before us. Reduction may be precluded in some cases, if restitutio in integrum is impossible
for some reason; in the present case there are no averments to indicate this. The pursuers
simply seek damages. The question therefore arises as to whether damages are a competent
remedy in these circumstances? It was submitted on behalf of the defender before the
commercial judge at debate that payment of damages was not a competent remedy where
either facility and circumvention or undue influence was the basis of the action, and that the
sole remedy was reduction. (We note in passing that there was no plea-in-law directed to
the competency of the remedy sought). The commercial judge observed (at para [114] of his
Opinion) that he was referred to no authority that in the absence of fraud damages could not
be obtained, but equally he was referred to no authority where in such circumstances
damages had been held to be a competent remedy. The only basis for the commercial
judge’s decision that damages were not competent appears to have been McBryde on
Contract, in which, in relation to facility and circumvention, the learned author expresses (in
rather tentative terms) the view that “in the absence of fraud it is probable that damages
cannot be obtained and remedies are limited to challenge of the deed and, where
appropriate, unjustified enrichment”. A similarly tentative view is expressed in relation to
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undue influence at paragraph 16-36, where the author observes that “there is no authority to
suggest that damages are a competent remedy for undue influence.”
[38] Before us, senior counsel for the defender and respondent accepted that damages
might be a competent remedy in respect of both facility and circumvention and undue
influence, but only if there were sufficient and relevant averments that a wrong had been
committed. The submission before this court was therefore significantly different from the
submission before the commercial judge.
[39] The commercial judge gave careful consideration to the averments about facility and
circumvention, and reached the conclusion that they were relevant. That conclusion was not
challenged before us. With regard to facility, the pursuers averred that by 2011 the deceased
was exhausted, vulnerable, weak and facile. He suffered from obvious anxiety and fatigue.
He would frequently become tearful and emotional at family gatherings. He had contracted
very serious shingles which left him with continuing material intermittent pain from which
he never recovered. He had poor eyesight, deficient hearing, and suffered from curvature of
the spine. He was also illiterate. With regard to circumvention, the commercial judge
observed that it was not necessary to aver specific instances of deceit (Gloag on Contract at
page 484), and referred to the helpful definition of circumvention given by Lord Glennie in
although the deceased was at the relevant time an established client of a firm of solicitors in
Aberdeen for approximately 50 years which had recognised expertise in agricultural,
property and tax law and that he also had an established tax accountant, neither were
involved or instructed in the disposition and that the defender arranged that the transaction
be carried out by a different firm of solicitors. It is also averred that this firm of solicitors
acted for both parties, there were no missives, and no advice was given with regard to
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capital gains and inheritance tax consequences, and without any independent valuation.
With regard to undue influence it is averred that the deceased could not have continued his
business until 2011 but for the supportive acts of the defender.
[40] Senior counsel for the defender and respondent suggested that facility and
circumvention and undue influence might arise in some cases entirely innocently and
without any question of a wrongful act. This may perhaps be possible, although we find it
difficult to imagine such a situation occurring often in practice, at least in relation to facility
and circumvention (although different considerations may apply to undue influence). Both
facility and circumvention and undue influence require to be assessed objectively. As Lord
Glennie put it in Smyth (supra):
“Circumvention is the name given to improper pressure applied to such a person by
another ... That pressure may, at one extreme, be direct, forceful and overpowering
or, at the other, be more subtle or insidious, working by solicitation or importuning.
... bullying or browbeating may equally amount to circumvention ... But facility is a
spectrum; it comes in degrees. A deed will only be at risk of being reduced (or set
aside) if the pressure applied is unacceptable having regard to the extent to which
the person on whom it is exerted is facile. If a person with a weak and pliable mind –
whether that condition is permanent or temporary and whether caused by age,
infirmity, pain, grief or something else altogether – is pushed or led by fraud, force
or solicitation to do what he would, or might, otherwise have resisted doing had his
mind been stronger, then his act can be reduced by the court.”
Similar phraseology is considered in McBryde on Contract at the passages to which we were
referred – for example, Lord Kyllachy’s unreported charge in Parnie v MacLean quoted from
“... whether, facility existing, there had been either distinct machinations, tricks,
importunities, solicitations, even suggestions ... it is not necessary that there should
be deceit. It is enough that there should be solicitation, pressure, importunity, even
in some cases, suggestion.”
The learned author also refers at paragraph 16-18 to the Encyclopaedia of Scottish Legal Styles,
(Vol 5 at 397) which gives as the form of issue:
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“Whether at the date of the deed ... AB was weak and facile in mind and easily
imposed upon and whether the defender taking advantage of the said weakness and
facility did by fraud and circumvention impetrate and obtain the said deed from the
said AB to his lesion?”
[41] The language used in each of these examples appears to us to carry a connotation of
what senior counsel for the pursuers and reclaimers described as moral turpitude. We see
no justification for suggesting that a person who behaves in this fashion towards another
person who is facile should not be described as committing a wrong.
[42] We agree with the commercial judge’s conclusion that the pursuers have made
sufficiently relevant averments of facility and circumvention and of undue influence. On the
basis of these averments we would have been inclined to allow the pursuers’ claims for
damages to proceed to proof, were it not for our decision on the other issues.
(iii) Prescription
[43] We agree with the submissions for the defender and respondent. The action was
raised on 28 July 2017. We consider that there was a concurrence of damnum and injuria as at
9 October 2011 when the disposition was executed. It was on this date that the estate of the
deceased was diminished by the sale at an alleged undervalue. The allegedly wrongful
diminution in the value of the deceased’s estate occurred in October 2011. The commercial
judge fell into error in accepting the argument for the pursuers that it was only at the point
when the pursuers’ mother died and there was a will in place whereby the pursuers
inherited that loss and damage crystallised and there was a conjunction of damnum and
injuria. Neither the death of the pursuers’ mother, nor indeed the death of their father,
resulted in any diminution in the value of the estate. That diminution occurred, on the
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pursuers’ averments, in October 2011. The pursuers’ right of action accordingly prescribed
in October 2016.
[44] The pursuers’ argument to the contrary involves an argument that the prescriptive
period applicable to them is different to that which attached to the deceased’s executor. The
pursuers submit that time begins to run at the earliest from the date on which the deceased’s
widow’s executor took office, namely at some date after 22 November 2016. This argument
is in our opinion unsound. What the pursuers complain about in this action is actings by the
defender culminating in a disposition granted on 9 October 2011, on which date as a result
of those actings the deceased’s estate was diminished. We consider that the prescriptive
period starts on that date.
[45] Section 11(3) of the Prescription and Limitation (Scotland) Act 1973 does not avail the
pursuers, for the reasons given by the UK Supreme Court in Gordon’s Trustees v Campbell
Riddle Breeze Paterson LLP at paragraphs [19] to [22]. The pursuers were aware that land
belonging to the deceased was sold in 2011, and each of them was given a sum of money
which they were told came from this sale of land. The fact that the land was sold at an
(alleged) undervalue could have been ascertained in 2011 just as easily as in 2017 when the
action was eventually raised. If the pursuers had had a title to sue in respect of the granting
of this disposition by the deceased in favour of the defender on 9 October 2011, such right
had prescribed in October 2016.
Conclusion
[46] For these reasons we shall refuse the reclaiming motion and allow the cross
reclaiming motion. We shall sustain the defender’s second, fifth and sixth pleas-in-law and
grant absolvitor.