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MacRobert v. Cahill [2005] ScotSC 27 (02 March 2005)

DAVID J C MACROBERT v JAMES WILLIAM CAHILL - A2680/94

GLASGOW, 2 March 2005. The Sheriff, having resumed consideration of the cause,

FINDS-IN-FACT THAT:

(1) Thomas Peter Cahill died on 31 July 1986. At the time of his death, he was survived by four children, namely, Mrs Marie Therese Keilty, Miss Margaret Bernadette Cahill, Dr Catherine Smith and the defender.

(2) The heritable subjects known as 119 Yokermill Road, Yoker, Glasgow, (hereinafter referred to as "the subjects"), formed part of Thomas Cahill's estate at the time of his death.

(3) Thomas Cahill left a Will dated 2 July 1986. Harry Smith was appointed executor. In terms of said Will, pecuniary legacies were bequeathed to Mrs Keilty, Miss Cahill and Dr Smith. The residue of the estate, after payment of the foregoing legacies, all debts, funeral expenses and legal expenses was bequeathed to the defender.

(4) There were insufficient funds in the estate to allow the executor to make payment of the pecuniary legacies. The defender was advised that he would require to fund the estate's liabilities before the house could be disponed to him.

(5) The defender took up residence in the house on or about 10 August 1987.

(6) After Thomas Cahill's death, a dispute arose regarding the value of the estate. In particular, the defender challenged the extent of cash transfers alleged to have been made to Dr Smith, prior to Thomas Cahill's death. In due course, the executor decided that he could no longer act and that a judicial factor should be appointed.

(7) By interlocutor of the Court of Session dated 20 January 1989, the pursuer was appointed judicial factor on Thomas Cahill's estate.

(8) Thereafter, the pursuer proceeded to do all that was reasonably required of him in terms of ascertaining the extent and value of the estate.

(9) The defender believed that his father, Thomas Cahill, had intended that he, the defender, should inherit the subjects on Thomas Cahill's death. With that in mind, the defender held discussions with the pursuer with a view to having title to the subjects transferred to him.

(10) Within about 3 months of the pursuer's appointment, the pursuer advised the defender that if he, viz. the defender, were to continue living in the subjects, he would require to provide the pursuer with sufficient funds to facilitate payment of the legacies together with other liabilities of the estate. Those requirements were prerequisites to the defender being granted title to the subjects. The pursuer also advised the defender that if such payment were not forthcoming the pursuer would require to raise an action for ejection against the defender.

(11) In or about July or August of 1989, the approximate sum required to meet payment of these liabilities was £22,000. As at September 2004, the amount involved was in excess of £100,000.

(12) In principle, the pursuer's position regarding the prerequisites to the defender being granted title to the subjects has not altered since his appointment. To date, apart from certain annual audit fees and other administration expenses, the defender has failed to make payment of any of the sums required.

(13) The legacies and other liabilities of the estate remain unpaid. In order to make those payments and to wind up the estate, the pursuer requires to realise the value of the subjects. He requires to sell the subjects. In order to do so, he requires to offer vacant possession to potential purchasers.

(14) At a point some time after the raising of the present action, the defender took up residence in Ireland. As at September 2004, he continued to reside in Ireland. He no longer resides at the subjects. The defender's son resides at the subjects.

(15) At no stage prior to or since his appointment as judicial factor did the pursuer enter into an agreement with the defender regarding the defender's occupation of the subjects.

FINDS-IN-LAW THAT:

The defender's occupation of the subjects is without right or title.

Therefore, sustains the pursuer's second plea-in-law and repels the defender's pleas; finds and declares that the pursuer is entitled to recover possession of the property at 119 Yokermill Road, Yoker, Glasgow; grants decree for removing against the defender, his family, his sub-tenants and dependants with his goods and possessions from the said property at 119 Yokermill Road; and reserves meantime all questions of expenses, including sanction for the employment of junior counsel.

Sheriff

NOTE:-

The evidence in this case dealt with a number of factual issues. However, in my view, it is important not to lose sight of this court's specific remit. The Inner House of the Court of Session allowed a proof before answer restricted to the issue of whether there was an arrangement between the defender and the pursuer whereby the defender could "remain in the subjects". (The Opinion of the Court, dated 28 September 2001, is referred to for its terms.)

At the same time, their Lordships determined that certain passages within the defender's averments in answer should be excluded from probation. Accordingly, the proof proceeded on the basis of a record dated 2 April 2004 the terms of which reflected the Inner House's decision to excise certain averments.

The substance of the passage which, in the court's opinion, entitled the defender to an enquiry is to be found in answer 1 on the second page of the record. The crucial averment takes the form of a qualified admission in the following terms:

"Admitted subjects (sic.) to the explanation that the defender has resided at said address since 10 August 1987 by agreement of and consent given to that residence by the pursuer shortly prior to him formally being appointed in the office of judicial factor as aforesaid."

The pursuer, Mr MacRobert, gave evidence in a clear and compelling manner. I had no doubt that his testimony was both credible and reliable.

On the pursuer's evidence, and, indeed, on any view of the whole evidence in the case, it was clear to me that he neither agreed to nor consented to the defender's residence at or occupation of the subjects since 10 August 1987. The pursuer's appointment did not arise until almost a year and a half after that date. Accordingly, the pursuer's rejection of any such arrangement squares with the clear fact that prior to his appointment, the pursuer had neither title nor interest to agree anything relating to the subjects.

In my view, the reality of the situation was that the pursuer, as his counsel submitted, merely inherited a fait accompli. When the pursuer took up his appointment, the defender was, as a matter of fact, already in occupancy. No doubt both parties were hopeful that the defender would be able to fund the liabilities of the estate thereby facilitating his infeftment in the subjects. However, to my mind, it did not follow that the parties had entered into an agreement simply because the defender, pending resolution of the financial impasse, declined to give up residence.

In his closing submission, counsel for the pursuer argued that for the agreement founded upon by the defender to prevail, there had to be evidence of "some sort of consensus" between the parties. I have concluded that the evidence led at proof disclosed no such thing. In so far as counsel for the defender sought to argue that there had been an agreement "through implication", having regard to the surrounding facts and circumstances, I reject that contention. In any event, the evidence led fell far short of establishing the nature and extent of the agreement espoused by the defender let alone the existence of a concluded bargain (see, for instance, May & Butcher Ltd v R (1929), noted at [1934] 2KB 17 Viscount Dunedin at 21.)

It was obvious to the court that the defender's testimony was driven by the genuinely held belief that his father, Thomas Cahill had intended that, after his death, the subjects would be passed down to the defender. Unfortunately, that, on any view of matters, was not provided for in Thomas Cahill's Will. Had the testator made the house at 119 Yokermill Road the subject of a specific legacy to the defender then, it may be, that this whole, sorry litigation would have been avoided. However, he did not do so.

At all odds, the tenor of the defender's own evidence-in-chief did not appear to support the crucial averment in answer 1. Initially, I found that to be somewhat surprising. However, towards the end of cross-examination of the defender, it became clear that, whatever else, the defender no longer adhered to that particular part of his written case.

When it was put to the defender that his "...occupancy pre-dated any supposed or alleged arrangement with Mr MacRobert, ..." the defender replied, "Oh, that old error! I'm sorry."

When asked what error he was referring to, put shortly, the defender read out the first sentence in answer 1 on record and, inter alia, described it as "absolute nonsense". The defender accepted that the averment was "wrong". At the conclusion of cross-examination, the following proposition was put to him:

"So, you were in the house in 1987, your father had passed on, you weren't in the house by any arrangement with the judicial factor in this case, the pursuer, that's what it boils down to?" His response:

"The judicial factor accepted the arrangement which was there when he was appointed and I continued."

My overall impression at the time of the proof and, in particular, when the defender was being cross-examined, was that it was far from clear precisely what it was that the defender maintained should be his stated position. However, given his explicit departure from the averment pleaded on record, it seemed to me that his reliability on the central issue in the case was wholly undermined. He had, in evidence, departed from the passage of averment which the Inner House, understandably, regarded as being the potential foundation for the establishment of an "arrangement" with the pursuer.

For completeness, certain disputes arose in the course of the hearing as to the relevance and admissibility of evidence.

During cross-examination of the pursuer, the defender's counsel put to him that "It always was the testator's intention that Mr. Cahill should have the house." Counsel for the pursuer took objection to this line of questioning on the basis that the terms of the Will stood, unchallenged and that, accordingly, the Will was conclusive as to Thomas Cahill's testamentary intention.

At the time, counsel for the defender submitted that the line was being pursued with a view to placing certain documentary productions before the pursuer and to asking questions of him thereanent.

I decided to allow the line whilst reserving my decision as to its relevancy or otherwise.

The same point of contention arose once again when counsel for the defender sought to ask the pursuer about instructions given by Thomas Cahill during his lifetime, with a view to transferring the subjects to the defender. For reasons similar to those expressed above, counsel for the pursuer objected to the question.

Having heard argument, I concluded that this particular line of questioning was bereft of relevancy and that the objection was well-founded. I have also decided that the earlier objection to the question designed to elicit the testator's intention was equally well-founded for the reasons advanced by counsel for the pursuer. Accordingly, I have left out of account all and any evidence elicited regarding intentions or instructions attributed to Thomas Cahill prior to his death.

Thereafter, objection was taken to counsel for the defender's attempt to introduce no. 6/55 of process into the evidence. The pursuer's counsel submitted that, in effect, the document under consideration amounted to a form of precognition. It was not a diary entry nor was it a copy of a letter. It appeared to be an historical note of some sort. However, when it was made could not be determined from the face of the document. It seemed to set out questions which may or may not have been put to the pursuer on an earlier occasion. The document wasn't founded upon in the pleadings and there was no record for it. Counsel for the pursuer argued that it was not a "true production".

Counsel for the defender maintained that the document was an attempt to set out the "bullet points" which the defender had hoped to raise at a meeting with the pursuer on 19 April 1989. However, he accepted that the document lodged was not the original document used for the purposes of that meeting.

In reply, counsel for the pursuer made the point that, if the document lodged were said to be an accurate reproduction of the original, it must have been in the defender's possession for about 15 years or so.

After a short adjournment, the court was advised that no. 6/55 of process had, in fact, been prepared in relation to a grievance which the defender had taken up with the Accountant of Court in 1990. The "original version" was said to be hand-written.

In these circumstances, I preferred the submissions of counsel for the pursuer. I considered that the arguments to the effect that the production should not be admitted in evidence were well-founded and, therefore, the objection was sustained.

Towards the end of cross-examination of the pursuer yet another objection was taken by counsel for the pursuer. On this occasion, it concerned questions asked of the pursuer under reference to certain documents which purportedly bore to vouch expenditure on the part of the defender, in relation to the subjects. As I understood it, the line adopted by the defender was that such expenditure was consistent with an agreement to occupy and it was, therefore, quite legitimate to put the various accounts etc. to the pursuer for his comment. Counsel for the pursuer submitted that this line of evidence wasn't relevant and, indeed, it has to be said that expenditure might have been equally consistent with a future intention to pay over monies, in exchange for a disposition, rather than an agreement to occupy. However, once again, I allowed the line under reservation.

In the event, various productions were put to the pursuer but by and large, for understandable reasons, the pursuer was simply unable to make comment on the documents. In one instance, counsel for the defenders showed the pursuer a copy of a form P60 in the name of one Brian Sharp whose employers were stated to be Hybrid Engineering Design. The pursuer indicated that he had no idea what it related to and, for the record, nor did I. At the time of asking, I was at a loss as to how the pursuer could make any meaningful comment upon such a document and nothing in the defender's case served to enlighten me on that point.

The pursuer's position in evidence was that he had never inspected nor been inside the subjects. He had only ever viewed them from outside the frontage.

I have concluded, therefore, that the objection to this line of evidence should be sustained. The issue before the court was whether the pursuer had entered into an arrangement with the defender prior to his appointment as judicial factor. In my opinion, on no view of the evidence which subsequently emerged could the expenditure, if proved, be unequivocally referable to such an arrangement. To my mind, it would, for instance, be equally consistent with an expectation that the estate liabilities would be paid off in exchange for the defender being granted title to the subjects. Indeed, the defender's own evidence seemed to confirm the latter hypothesis. When asked, in examination in chief, about his occupation of the subjects, he stated:-

"I was doing up the house and I was already paying the rates. I already had it insured and I would just carry on doing that if he" (the pursuer) "...had no objection, pending him gathering in the estate and I would buy out the house".

Accordingly, I have left out of account all and any evidence, elicited in the course of cross-examination of the pursuer, relating to productions designed to vouch expenditure quoad the subjects.

Towards the very beginning of examination in chief of the defender, counsel for the pursuer objected to evidence being elicited in relation to issues which pre-dated the pursuer's appointment. Whilst I had considerable sympathy with the tenor of his argument, I decided, once again, to allow the evidence to be heard under reservation. In particular, I determined that, generally, evidence regarding "communings" between other parties and pre-dating the pursuer's appointment would be allowed under reservation.

Thereafter, in the course of the defender's evidence, much reference was made to the correspondence contained within the defender's main inventory of productions. It will be seen that some of the letters pre-dated Thomas Cahill's death. At all odds, as matters developed, it became clear to me that, if anything, the line of questioning merely served to put in issue the defender's reliability and credibility. The responses elicited, in my view, had little bearing upon the substantive issue in the case viz. the existence or otherwise of an agreement between the parties in line with the defender's averment. Having heard the evidence in question, I reached the conclusion that counsel for the pursuer's original objection was well-founded and that the evidence objected to, and initially allowed under reservation, should be excluded from consideration for the purposes of reaching a decision in the case.

In other words, I have disregarded the evidence concerning letters and other communings involving various individuals (including Thomas Cahill), aside from the pursuer, and pre-dating the pursuer's appointment.

For the avoidance of doubt, I should make it clear that, had these various passages of evidence formed part of my deliberations, they would, nevertheless, have made no impact upon my determination of the case. I suppose that follows as a matter of logic given that the evidence has been excised from the court's consideration for want of relevancy. However, the inescapable conclusion is that the defender has simply failed to prove his case. The testimony regarding Thomas Cahill's intentions while still alive, any expenditure on the subjects and the various communings contained within the defender's main inventory of productions, could not, in my view, alter that fact.

In contrast, on the basis of the evidence led on behalf of the pursuer, I was satisfied, on the balance of probabilities, that the defender had no right or title to occupy the subjects and that, more acutely, the pursuer had never entered into the agreement contended for within answer 1 in the defences.

Finally, the proposition that the action was incompetent, due to the absence of a notice to quit, formed part of the submission advanced by counsel for the defender. In my opinion, whilst such an argument might be well-founded in a removing, say, as between landlord and tenant, I do not consider that a notice to quit is an essential preliminary in the present context.

On the evidence, the defender has never acquired any right or title to possess or occupy the subjects. The pursuer, qua judicial factor, has title to the subjects and seeks to have the defender removed. In my view, no notice is required. (cf. a lease where a notice is required to avoid tacit relocation and where the tenant, by definition, previously had a legal right to possess or occupy.)

Even if the foregoing analysis is incorrect, I do not accept that it was open to the defender to found upon this argument. Firstly, there are no averments in the answers regarding the lack of a notice to quit. Secondly, the defender has no plea to the competency of the action. (Had such a plea been tabled, it ought to have been dealt with in limine.) In any event, the defender's erstwhile second and sixth pleas-in-law were repelled as a consequence of the appeal. Thirdly, the remit from the Inner House was specific and, in particular, nothing was said in connection with any notice to quit. For all these reasons, the defender's argument quoad the absence of such a notice falls to be rejected.

At the request of counsel, I have reserved all questions of expenses, including the issue of sanction for junior counsel.

SHScott.LD.Macrobert