Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH

[2016] SC EDIN 54

JUDGMENT OF SHERIFF WILLIAM HOLLIGAN

In causa

X

Pursuer

Against

A, B, C and D

Defenders

Act:   Speir, Advocate, instructed by MHD Law

Alt:  Stewart, Advocate, instructed by Macnabs

Edinburgh: 12            November 2015

The sheriff having resumed consideration of the cause finds in fact:

[1]     [X (“the deceased”) died in] 2014.

[2]     The deceased died intestate.

[3]     Immediately before the deceased died [the deceased] and the pursuer were cohabitants residing together ….

[4]     The first and second defenders are the mother and father of the deceased, respectively. They were appointed executors dative to the deceased’s estate, conform to decree dative granted by Edinburgh Sheriff Court on 3 November 2014 ….

[5]     On 15, 16 and 23 October 2014 the pursuer discussed the deceased’s estate with [agents  ….].

[6]     The first and second defenders’ petition for appointment as executors dative was lodged with Edinburgh Sheriff Court on 24 October 2014.  The petition was not intimated to the pursuer. There was no requirement that any such intimation be given.

[7]     The appointment of the executors dative was intimated by e-mail dated 3 February 2015 with C1 and C2 inventory attached and by e-mail dated 17 February 2015, both from ….agents for the executors dative, to [agents for the pursuer….]

[8]     ….

[9]     On 26 February 2015 a warrant for service was granted in the present action….

[10]   At the time the present action was raised [agents] had knowledge that the first and second defenders had been appointed as executors dative.

[11]   Service of the initial writ, warrant and first inventory of productions was made on the first and second defenders by registered, signed for, international post ….

[12]   The first and second defenders received service copies of the initial writ, warrant and first inventory of productions court papers at their home address ….on 6 March 2015.

THEREFORE puts the matter out by order to determine further procedure; assigns 19 November 2015 at 10 am at the Sheriff Court, 27 Chambers Street, Edinburgh as a diet therefor; meantime reserves all questions of expenses.

Note

[1]     This is an action brought pursuant to section 29 of the Family Law (Scotland) Act 2006 (“the 2006 Act”).  The pursuer and … (“the deceased”) lived together….  The deceased died in … 2014.  He died intestate.  The first and second named defenders are the mother and father of the deceased.  The third and fourth defenders are siblings of the deceased.  The procedural history is as follows. The initial writ in this matter was warranted on 26 February 2015. Defences were lodged on behalf of the first and second defenders.  The deceased having died intestate the action was raised against the four defenders as next of kin and representatives of the estate of the deceased. The initial writ craved decree cognitionis causa tantum. The pursuer sought leave to amend the action to the extent of removing reference to decree cognitionis causa tantum and substituting therefor craves directed towards the first and second defenders as executors dative.  The instance of the initial writ remained and remains unchanged.  By interlocutor dated 15 July 2015 amendment was allowed in terms of the minute of amendment, as adjusted (No 18 of Process).  The minute of amendment was first lodged by the pursuer on 27 May 2015 (No 14 of process).  The matter proceeded by way of proof before answer before me on 30 September 2015.  The proof was limited to the matters more particularly set out in the interlocutor dated 19 August 2015, a copy of which was sent in draft to agents for comment before being issued and signed.  As that interlocutor narrates, the matter was to proceed to proof upon certain specified parts of the parties’ respective notes of argument lodged in process.  After various interlocutory hearings, the parties entered into a joint minute of admissions in which all of the relevant evidence was agreed.  I have incorporated the relevant parts of the joint minute of admissions as findings in fact in this judgment.  For the purposes of the proof there are no factual matters in dispute.

[2]     The relevant factual material can be summarised shortly.  The first and second defenders petitioned for appointment as executors dative to the estate of the deceased by a petition lodged on 24 October 2014.  The petition was not intimated to the pursuer.  It is accepted that there was no requirement that it be so intimated.  Decree was granted on 3 November 2014.  Between October 2014 and February 2015 there were certain exchanges between agents instructed on behalf of the first and second defenders and the pursuer.  This action was warranted on 26 February 2015 and served upon the first and second defenders by international post on 26 February 2015.  As a matter of fact the first and second defenders received the relevant paperwork at their home … on 6 March 2015.  No point is now taken by the defenders as to service of the writ upon them.  It is a matter of agreement that at the time the present action was raised, the agents acting for the pursuer were aware that the first and second defenders had been appointed as executors dative. Putting the matter in very general terms, section 29(6) of the 2006 Act provides that any application pursuant to section 29 shall be made before the expiry of six months, the period starting from the day on which the deceased died.  On the agreed facts the question before me relates to the interpretation of section 29 and, in particular, section 29(6) of the 2006 Act.

Submissions for the defenders

[3]     Before I refer to the submissions of the first and second defenders I should say that the action against the third defender was abandoned; the fourth defender was never served.  The instance in the closed record is the instance in this judgment.  Mr Stewart advanced four propositions: (1) the instance of a writ which omits to state the special capacity in which a party sues, or is sued, is defective and incompetent; (2) an application pursuant to section 29 is properly raised against the executors of the deceased; (3) in this action the pursuer did not, and still does not, design the first and second defenders in the instance by reference to their special capacity as executors; (4) this action is accordingly incompetent. 

[4]     In support of his propositions Mr Stewart referred to a number of authorities; Royal Insurance (UK) Limited v AMEC Construction Scotland Limited 2008 SC 201; Hunter v London Midland and Scottish Railway Company 1938 SLT 598 and Morrison v Morrison 1912 SC 892.  In the present case, the first and second defenders are not named in the instance as executors dative.  There is no reference to their special capacity in the instance.  The craves and the articles of condescendence do make reference to their special capacity but that is not sufficient.  The authorities referred to make clear that the failure to design a party by reference to their special capacity in the instance of an action renders that action incompetent.  Changing the instance by reference to a special capacity constitutes a new action.  Section 29(6) contains a period within which an action must be brought and if that is not done competently within the relevant time period the pursuer is not entitled to seek to amend after the expiry of the relevant six month period.  (Although, as it will become clear later in this judgment, referring to section 29(6) as containing a time bar is not strictly accurate, I may, for reasons for brevity, use that expression).  Accordingly, if the pursuer accepted the argument for the first and second defenders that the action which is presently laid is incompetent it would be necessary for the pursuer to seek leave to amend.  Any leave to amend would be opposed.  Mr Stewart accepted that in Royal Insurance the procedure adopted in that case had been to put the case out by order to allow the pursuer to amend.  However, the same reasoning in relation to amendment does not apply in the present case. 

Submissions for the pursuer

[5]     Mr Speir submitted that section 29 contains three threshold requirements: (1) that the deceased died intestate; (2) that the deceased was domiciled in Scotland; (3) that the pursuer was cohabiting with the deceased.

[6]     Section 29(6) describes a time period within which proceedings must be brought, namely six months from the date of death.  The section does not specify any form of application nor does the section itself describe who should be the defender.  In essence, the section 29 application is a claim against the deceased’s intestate estate and accordingly anyone with an interest in that estate should have an opportunity to contest the application.  Usually executors dative are selected from amongst the heirs on intestacy.  Mr Speir referred to Currie on Confirmation (9^th Edition) at paragraph 6-14, which refers to Thompson Petitioner, Glasgow Sheriff Court, 16 June 2008 (Mr Speir had been unable to track down a copy of the decision itself).  That appeared to be an action by a cohabitee but in circumstances where there was consent by the beneficiaries on intestacy to the procedure being pursued. (I understand no opinion was issued in that case and therefore I will say nothing further in relation to it.) Rule 33.1(q) of the Sheriff Court Rules includes in the definition of “family action” an application pursuant to section 29 of the 2006 Act.  By rule 33.7(p) any writ brought pursuant to section 29 requires to be intimated to any person “having an interest in the deceased’s net estate”.  Form F12E provides the relevant form.  In addition, rule 33.6A provides that in any action under section 29(2) the pursuer shall call the deceased’s executor as the defender.  Mr Speir submitted that rule 33.6A finds no equivalent in the Court of Session rules.  The rule refers to “a defender” not “the defender”.  No provision is made if there is no executor dative.  In Mr Speir’s submission, it cannot be the position that there can be no application if there is no executor dative.  A family may have an interest in defeating a claim by not petitioning for appointment of an executor dative.  Rule 33.6A may require the executor to be called but it does not preclude an action against other defenders.  The initial writ commenced in the form seeking decree cognitionis causa tantum.  It is accepted that there was a breakdown in communication in the office of the agents of the pursuer.  The agents were aware that there were executors dative but this information was not passed on to the person drafting the initial writ.  Mr Speir submitted that for a competent and timeous application under section 29 it is sufficient that there be citation of a person having an interest in the deceased’s intestate estate, whether that be as executor or beneficiary, provided that the application is brought within six months of the date of death.  Mr Speir accepted that if an action was raised at a point at which there were no executors, but executors were later appointed, they would need to be called as defenders.  Mr Speir referred to the case of Tenzin v Russell 2015 Housing LR 11.  That was a case in which the crave was defective but amendment was permitted.  The reasoning is analogous here.  In the present case the first and second defenders had an interest as representatives of the deceased.  They had no doubt as to the purpose of the application but they also would have an interest in the application itself.  Although Mr Speir did not concede that the action was fundamentally incompetent he was content to follow the procedure suggested by Lord Emslie in the case of Royal Insurance namely to put the matter out by order in order to allow him to lodge a minute of amendment amending the instance of the writ so as to design the first and second defenders as executors dative.  

[7]     Mr Speir then moved on to his note of argument.  In article 12 of condescendence reference is made to certain intellectual property said to belong to the deceased.  It is clear from the confirmation granted in favour of the first and second defenders that they have not confirmed to that estate.  As the court can only make orders in relation to the net intestate estate, it can only do so against the executors and the executors have to have title.  It follows that the defenders averments in answer 3 after the words “quoad ultra denied” would fall to be struck out.  At the end of the day the argument was not greatly pressed and I am not convinced it is really a matter of relevancy.

Further submission by the defenders

[8]     Mr Stewart opposed granting the pursuer leave to amend.  Mr Stewart again referred to the case of Royal Insurance.  The underlying right of the pursuer in that action was not in dispute.  That is not the position here.  Mr Stewart referred to Simpson v Downie 2012 Fam LR 121.  The Inner House in Simpson had taken a very strict view of the construction of section 28. The reasoning of Simpson was equally applicable to section 29.  It is essential that the court be seized of a section 29 application within the six month period.  In the present case that did not happen.  The craves were not amended until after the expiry of the six month period.  Mr Stewart adopted the arguments of senior counsel in the case of Simpson, particularly as they are recorded in paragraphs [7] to [9] of the opinion of the court.  The jurisdiction to grant relief in terms of sections 28 and 29 was described as “novel” and there are certain “imperative preconditions” which have to be satisfied before the court has jurisdictional competence.  One of those imperative preconditions is the time limit.  The Inner House acknowledged that such a construction might cause hardship (see paragraph [14]).  One of the essential preconditions was that the action be raised against a person holding a special capacity.  Rule 33.6A made it clear that the action should be raised against an executor, not against a beneficiary.  (See Kerr v Mangan 2015 SC 17, at paragraph [10]).  In Mr Stewart’s submission executors are the only parties against whom a section 29 claim may be brought.  Mr Stewart submitted that the procedure seeking decree cognitionis causa tantum does not apply to section 29 cases.  In the present case there are executors and indeed there were executors at the time the action was raised.  There is also rule 33.6A.  It was not open to the pursuer to choose to call the executors if he so wished.  In short, section 29, Simpson v Downie, Kerr v Mangan and rule 33.6A make clear that the action should be directed against an executor properly so designed.  Until that is done an action is defective and incompetent.  There is no authority cited to permit any other mechanism.  The case of Tenzin was distinguishable because there was an underlying competent action.  In the present case the court does not have jurisdictional competence unless or until the preconditions are met.  Amendment cannot resolve the time bar issue.  It is now over 11 months since the deceased died.

[9]     Furthermore, insofar as granting leave to amend involves the exercise of discretion, that discretion should be exercised against the pursuer.  The pursuer’s agents knew that there were executors; his agents were well aware of the importance of the time limit – they were the agents involved in Simpson v Downie. To permit amendment now would allow an action to be brought outwith the six month time limit which would defeat the whole purpose of the time limit.  There is no discretion to extend the six month limit.

Reply by the pursuer

[10]   Mr Speir did not accept the argument that only executors can be sued.  That is not what the 2006 Act says.  The claim is against the net estate of the deceased, not against an individual.  Rule 33.6A finds no equivalent in the Court of Session rules and it would be an odd situation if there were different standards between the two courts.  It is accepted that if there is an executor then the executor should be called as a party to the action.  The pursuer can make a competent application against someone who has an interest in the net estate.  It could not have been the intention of Parliament to restrict the exercise of the right to cases where there is an executor.  As a matter of fact, in the present case service had been effected upon the executors.  The fact that they were not described as such did not mean a timeous application had not been made. The present case was similar to Tenzin.  Section 29(6) provides that “an application shall be made”.  That is done by service of a claim against the net intestate estate of the deceased and that is done by serving it upon someone who has an interest in opposing it.  That could be an executor dative, a beneficiary or a potential beneficiary.  It would not be necessary to call all such beneficiaries.  It was accepted that there might come a time when it might be argued that all parties had not been called, such as an executor dative.  The action accordingly was competent but it should be put out by order to allow the pursuer to lodge a minute of amendment seeking to leave to amend the instance.

[11]   By way of a short reply, Mr Stewart submitted that so far as a claim against the net estate of the deceased is concerned the legal embodiment would be the executor.  Rule 33.7(p) provides for intimation to beneficiaries.  Rule 33.6A makes reference to calling executors as defenders.  There would seem to be no purpose to be served in having two separate rules if all that is necessary is intimation to a beneficiary. 

Decision

[12]   The starting point in considering this matter is the 2006 Act.  The relevant parts thereof are as follows:-

“Section 29(1) This section applies where –

1. a cohabitant (the “deceased”) dies intestate; and
2. immediately before the death the deceased was –

1. domiciled in Scotland; and
2. cohabiting with another cohabitant (the “survivor”)

(2)… on the application of the survivor, the court may –

(a) after having regard to the matters in subsection (3), make an order –

(i) for payment to the survivor out of the deceased’s net intestate estate of a capital sum of such amount as may be specified in the order;

…

(5)     An application under the section may be made to –

(a) the Court of Session;

(b) a sheriff in the sheriffdom in which the deceased was habitually resident at the date of death;

…

(6)     Any application under this section shall be made before the expiry of the period of six months beginning with the day on which the deceased died”.

[13]   In relation to the sheriff court, rules have been enacted to set out the procedure to be followed for applications made pursuant to section 29.  They were originally contained in the Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc) 2006 (SSI 2006/2207) (“the 2006 rules”).  The 2006 rules introduced chapter 33B to the ordinary cause rules which provided, inter alia, that an application should commence by way of an initial writ; the pursuer should name the deceased’s executor as a defender; and include a warrant for intimation to persons having an interest in the deceased’s net intestate estate.  The 2006 rules were repealed by the Act of Sederunt (Ordinary Cause Rules) (Miscellaneous Amendments) 2012 SSI 2012/188 (“the 2012 rules”).  In essence, the 2012 rules repeal chapter 33B and ordain that proceedings pursuant to sections 28 and 29 of the 2006 Act be treated as family actions in accordance with chapter 33 (see rule 33(1)(q)).  It follows that there was no need for the 2012 rules to specify that an application begin by way of an initial writ.  Chapter 33 was further amended to contain the same, or similar, provisions to those contained in chapter 33B.  The relevant parts thereof are as follows:-

“Rule 33.6A (1) In an action for an order under section 29(2) of the Act of 2006 … the pursuer shall call the deceased’s executor as a defender.

…

Rule 33.7(p)… the pursuer shall include a crave for a warrant for intimation in an action where a pursuer makes an application for an order under section 29(2) of the Act of 2006… to any person having an interest in the deceased’s net estate, and a notice of intimation in Form F12E shall be attached to the initial writ intimated to any such person”.

Form F12E informs the party to whom intimation is made that he or she may, if so advised, apply by way of minute to enter the process. 

[14]   Contrary to what Mr Spier submitted, it appears to me that the rules of the Court of Session are in very similar terms to those referred to above; Supreme Court Rules 49.8(1)(n); 49.8(3)(o); 49.90 and Form 49.8-P.  I therefore see no practical procedural difference between proceedings in the two courts. Even if there were differences, in my experience it is not that unusual and would make no difference to my conclusions.

[15]   The key provision in section 29 is that set out in section 29(6) which refers to the time within which proceedings should be commenced, namely six months from the date of death.  As I understand them, both counsel accepted that the interpretation the Inner House gave to section 28(8) of the 2006 Act in Simpson applies with equal force to section 29(6).  Indeed, Mr Stewart specifically adopted the argument of senior counsel for the appellant in that case.  Section 28(8) relates to claims brought by a living cohabitant.  The relevant part of the opinion of the court, delivered by Lord Emslie, is set out at paragraph [13]:-

“… We have reached the conclusion that the parliamentary intention behind section 28… is that the court’s novel jurisdiction to entertain cohabitants’ financial claims may be exercised only in respect of applications which are made within the one year time limit laid down in subsection (8)… In our opinion it is only compliance with the time limit which validates an application and clothes the court with the necessary jurisdiction.  Failing such compliance, an essential qualifying component of the statutory scheme is missing, and in such circumstances we do not consider that section 28(2) can competently be operated as if it stood alone…  On that basis senior counsel for the pursuer was, in our view, well founded in describing the issue as one of jurisdictional competency, rather than as one involving either an extinctive prescription or, alternatively, the limitation of a pre-existing right of action”.

[16]   As I read the passage referred to, the time limit is not a time bar as such but a necessary precondition to the court exercising its jurisdiction.  In my opinion, the reasoning in relation to section 28(8) applies with equal force to the interpretation of section 29(6). It follows that if its terms are not satisfied the court has no jurisdiction to entertain the claim.  There is no power to extend the time period or excuse compliance therewith.

[17]   Section 29 of the 2006 Act refers to the making of an “application”.  Little more is said as to procedure which is no doubt why the respective rules of court were enacted.  One could take the view (although I do not suggest that it is correct) that section 29 is sui generis, creating what was called in Simpson a “novel” jurisdiction, to the effect that all that is required is an application timeously made with intimation to persons with an interest to oppose it.  Any resulting decree would of course be of little practical value without someone to give effect to it.  Kerr v Mangan stated that claims pursuant to section 29 are part of the law of succession (paragraphs [39] and [43]) and not part of family law.  Procedurally, the rules of court provide otherwise.  Simpson involved a claim and counterclaim between living cohabitants and to that extent is different from section 29 claims.  Referring again to Kerr, the

paradigm case is that in which an order is sought, directed against an executor dative, requiring payment of a particular sum (see paragraph [10]).  The rules fill the gap in the section as to procedure by providing that the executor dative should be called as a defender; and those with an interest in the intestate estate should receive intimation of the action and have a right to enter process if so advised.  What the rules do not do is cater for the scenario where there is no executor dative in office. Although I do not say that it has happened here, as was said in argument, the family of a deceased may simply delay the appointment of an executor dative until the six month time period has expired after which, following the reasoning in Simpson, the surviving cohabitant is denied a remedy.  I cannot read rule 33.6A as meaning that an executor dative, and only an executor dative, can be sued so that if, for whatever reason, there is no executor dative there is no right. That seems to me to be the logical consequence of Mr Stewart’s argument.  In my opinion, the terms of rule 33.6A are intended to give directions as to procedure rather than prescribing a procedure necessary to constitute the exercise of the right. In Simpson, it was accepted no counterclaim had been made within the relevant time period: here there were proceedings within the relevant time period, only they were not directed against the defenders in their capacity as executors but in their capacity as beneficiaries.

[18]   If I am correct in my analysis of rule 33.6A then the obvious question arises if, in cases where there is no executor, what action would be competent?  In the present case an action cognitionis causa tantum was raised.  I did not hear detailed argument as to the competency of this procedure.  I therefore restrict myself to saying that, given that an executor may never be appointed and that such a state of affairs would in effect prevent a survivor pursuing a  claim, I do not regard the appointment of an executor as being a fundamental prerequisite to the making of a claim.  It follows that the mere fact that the defenders were not named as executors does not necessarily compromise the pursuit of the action.  It follows that if there are other ways in which an action could have been commenced without an executor, the failure to convene the executor does not render the action fundamentally and fatally incompetent.

[19]   The obvious rejoinder to the foregoing is that there were executors and the pursuers’ agents, collectively, knew that.  That leads me to the leading cases of Royal Insurance and Tenzin.  In Royal Insurance, the pursuers were trustees pursuant to a bare trust.  They failed to design themselves in that special capacity in the instance of the summons.  Most of the argument in that case was whether the pursuers had title to sue.  An additional part of the argument related to the failure to design the pursuers correctly in the instance.  The key passages are found in the opinion of Lord Emslie at paragraphs [21], [22], [24] and [25].  In short, Lord Emslie held that the rule requiring proper disclosure of any special capacity in the instance has been well established for a very long time.  Without appropriate amendment the instance of a summons which omits to state the special capacity in which a pursuer sues must be regarded as defective and incompetent.  However, that did not affect the pursuers’ fundamental title to sue but was a matter of “proper practice”.  The result in Royal Insurance was that the matter was put out by order to allow the pursuers to lodge a minute of amendment correcting the defect in the instance.  The failure to follow the proper practice was not fatal to the pursuit of the pursuer’s claim.  I am familiar with the facts in the case of Tenzin, having decided the matter at first instance.  That case concerned a claim by a tenant pursuer for payment of a sum of money by a landlord who had failed to comply with certain regulations relating to tenancy deposits which, read short, gave to the court the power to make an order for payment against a landlord in default of the regulations.  When the action was raised, the pursuer failed to include within the summary application a crave for payment.  Given that there was a time limit applicable to the instigation of those proceedings it was argued that this failure was fundamental to the competency of the proceedings.  The argument was rejected and the pursuer was allowed to amend.  So far as the general principle is concerned I do not see that there is any fundamental difference between the special capacity of a pursuer or a defender.  The rule requiring a special capacity to be correctly identified in the instance applies to both.  The reason for the rule is driven by practical considerations as much as anything else.  As Lord Emslie commented at paragraph [22], there can be difficulties in the context of expenses, extract, discharge, compensation or set off if a special capacity is not properly identified. However, in my opinion, there is an issue in the use of the word “incompetent”. As the two cases referred to above illustrate, and the cases referred to therein, just because an action is described as “incompetent” does not mean that the consequences impliedly commensurate with such a damning conclusion always follow.  The authorities referred to by Lord Emslie show that the law has become more relaxed in its response to defects in procedure. Neither action was dismissed.  As I have said, whereas I accept the extension of the principle in Simpson to section 29 claims, Simpson involved the failure to pursue a claim within the relevant time limit. There was no timeous claim before the court at the instance of the person making the claim. For reasons I have set out, in my opinion, the rules of procedure relating to section 29 claims are not mandatory in the sense that timeous failure to comply therewith automatically renders an action liable to dismissal. Section 28 claims are different from section 29 claims. The former relate to claims between living cohabitants. There is no doubt as to the identity of the correct party. Section 29 claims relate to the law of succession. It is a claim against an estate rather than a person. I can see that applications ought to convene executors as defenders. A failure to do so constitutes a failure to follow proper practice and should be remedied where that is possible. Nonetheless, in my opinion if the absence of an executor is not an absolute bar to the making of a claim pursuant to section 29, and I hold that it is not, it ought to follow that an action raised against someone other than the executor (which includes all interested parties) does not, of itself, render the action liable to dismissal as fundamentally incompetent. I am therefore not minded to dismiss the action. I am also minded to allow the pursuer to tender a minute of amendment to address the current problem. I shall put the matter out by order in order to consider the terms of any minute of amendment lodged following the issue of this judgement. I shall reserve the disposal of pleas and questions of expenses to that diet.