ELIZABETH DOBBIE AGAINST MICHAEL PATTON
SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW
A31/14
2015SCGLA34
JUDGMENT
of
SHERIFF PRINCIPAL C A L SCOTT, QC
in the cause
ELIZABETH DOBBIE
Pursuer
against
MICHAEL PATTON
Defender
Glasgow, 8 May 2015.
The sheriff principal, having resumed consideration of the appeal, refuses same; adheres to the sheriff’s interlocutor dated 11 December 2014; finds the pursuer personally liable for the expenses of the appeal; allows an account thereof to be given in and remits same, when lodged, to the auditor of court to tax and to report thereon; and certifies the appeal as suitable for the employment of junior counsel.
NOTE:-
[1] The circumstances giving rise to the action are well described at paragraph [2] of the sheriff’s note. After debate, the sheriff sustained the first plea in law for the defender and dismissed the action.
[2] The first issue for the sheriff and on appeal was whether the pursuer’s case to the effect that the defender had acted as a vitious intromitter in respect of the deceased’s estate was relevant or not. On behalf of the pursuer, it was averred that the defender had breached the statutory duty imposed by the Vitious Intromitters Act 1696.
[3] The sheriff determined that this aspect of the pursuer’s case had, indeed, failed for want of relevancy. He accepted the submission advanced by counsel for the defender to the effect that the rule embraced by the 1696 Act had been introduced for the benefit of creditors of a deceased person and was not available as a ground of action to heirs or legatees (Erskine, III, 9, 54).
[4] The solicitor for the pursuer, in advancing the appeal, maintained that the 1696 Act did have relevant application to the circumstances of the case and that the sheriff had erred in reaching the contrary conclusion. It was argued that statutory interpretation lay at the heart of the issue.
[5] In the course of his submission, the pursuer’s solicitor referred to the Stair Memorial Encyclopaedia (Vol 25) at paragraph 1060 and to various passages in Currie on Confirmation of Executors, Chapter 1. He also founded upon section 20 of the Succession (Scotland) Act 1964 along with section 4 of the Trusts (Scotland) Act 1921.
[6] As I understood the submission for the pursuer, it was to the effect that the provisions of the 1696 Act required to be construed in accordance with the law as it had subsequently developed particularly in light of sections 20 and 4 above. Under section 4(1)(i) of the 1921 Act, for example, trustees had power to compromise or to submit and refer all claims connected with the trust estate.
[7] It was submitted that those benefiting from legal rights under a deceased’s estate equated to creditors and that that accorded with ”the modern law” viz. the 1964 Act provisions. Were it truly the case that an executor was precluded from raising an action in the circumstances condescended upon that would be contrary to common sense. The solicitor for the pursuer appeared to found to some extent upon the case of Lamont v Mooney [2011] SCOH 82.
[8] The argument relating to the second issue before the court, viz. the pursuer’s delictual case, was more straightforward at least in terms of its articulation. There had been an “assumption of responsibility” by the defender. It was only right that, where such responsibility had not been fulfilled or had been “breached”, an executor could and should sue on behalf of the estate. Were that not so, it would be absurd.
[9] Thirdly, the pursuer’s solicitor challenged the sheriff’s finding that the pursuer should be personally liable quoad the expenses of the action. He renewed his contention that any award of expenses against the pursuer should be qua executrix.
[10] Counsel for the defender provided the court with written submissions. He highlighted the proposition that a remedy was available to an executor or beneficiary in the particular circumstances of the case. However, he stressed that the pursuer’s pleadings failed to disclose any relevant right of action. In passing, counsel pointed out that the passage from the Stair Memorial Encyclopaedia made reference to a deceased’s estate vesting on confirmation. The pursuer’s appointment in the present case remained unconfirmed. Therefore, it might also be the case that no title to sue existed.
[11] In any event, counsel’s main argument regarding the pursuer’s 1696 Act case was that the remedy provided by the statute concerned inter-vivos creditors. He referred to the passage from Erskine and commended it as representing the most contemporaneous understanding from one of the institutional writers as regards the effect of the 1696 Act. Counsel submitted that the 1696 Act remedy had nothing to do with “succession, executors or beneficiaries”.
[12] When it came to the pursuer’s delictual case, counsel for the defender focused upon the nature of any duty of care owed and the legal persona to whom any such duty might be owed. He submitted that the deceased’s estate was not a “juristic” person. In Matthews v Hunter & Robertson Ltd 2008 SLT 634, Lord Brodie commented, at paragraph [31], page 642, that:
“In Scotland, actual loss must have been incurred for a right of action to arise, whether in contract or in delict, and it is only where the deceased had a right of action that there is anything to transmit to his executor.”
[13] In the same case, at paragraph [38], page 645, Lord Brodie had also observed that:
“…duties are owed to and rights are held by natural and juristic persons. The estate of a deceased is not a natural or juristic person. Rather, it is a fund of property vested in an executor for the purposes of administration in respect of which debtors and beneficiaries have claims. It only vests on the death of the person in whom it was formerly. The intervention of the pursuer as executor, who is of course a natural person, is required in order to enforce the duty but, on counsel for the pursuer’s theory, the defender’s predecessors, on accepting the instructions of the deceased, undertook a duty of care to her estate at a time when there was no person, other than the deceased herself, who might be the recipient of the duty. That does not seem to fit very easily with the principle that a duty is an obligation owed by one person to another person. Nor does it fit with the principle that a duty is the correlative of a right and that a right must have a right holder. Who, it might be asked rhetorically, was holding the right in respect of which the pursuer now sues prior to his appointment as executor?”
[14] Counsel also referred to the Scottish Law Commission discussion paper on the Nature and the Constitution of Trusts issued in October 2006. Paragraph 2.45 therein indicated the Commission’s view that there was
“…little, if any, support for the view that a trust should be an entity with legal personality separate from that of the beneficiaries and the trustees.”
[15] With regard to the sheriff’s treatment of the expenses of the action, counsel for the defender supported the sheriff’s approach.
Decision
[16] In my view, the submissions advanced on behalf of the defender are to be preferred. In relation to the pursuer’s 1696 Act case, the question of statutory interpretation is not really an issue. It is more fundamental than that. The law is clear. As the authors of Gloag & Henderson, The Law of Scotland, 13th Edn, confirm, the rule about vitious intromissions was introduced for the benefit of creditors of a deceased person and it is not available as a ground of action to heirs or legatees. (See paragraph 40.05 which, in turn, refers to the passage taken from Erskine supra). I did not accept the pursuer’s solicitor’s contention that the passage from Erskine was, in effect, no longer good law.
[17] To my mind, the solicitor for the pursuer’s attempts to rely upon the provisions on the Succession (Scotland) Act 1964 and those of the Trusts (Scotland) Act 1921 were misguided. Those provisions are what they are. However, it is facile to suggest that they might somehow be utilised to convert a patently irrelevant claim under the 1696 Act into a relevant right of action. Aside from these general references to more recent statutory provisions and to notions of statutory interpretation, no cogent authority was placed before the court such as might come close to imbuing the pursuer’s first ground of action with any hint of relevancy.
[18] I am also afraid to say that the pursuer’s delictual case is fundamentally defective. That case seeks to ignore the core principles surrounding the existence of a duty of care. The sort of issues referred to by Lord Brodie in the Matthews case are equally pertinent when it comes to the present litigation. As pleaded, the pursuer’s second ground of action amounts to the proposition that the defender’s actings resulted in a loss to the deceased’s estate. It may be that as a consequence the pursuer and, perhaps, other beneficiaries might, indeed, have suffered loss. However, it would then be open to them to sue the defender in such a capacity. As a matter of law, it is not, in my opinion, open to the pursuer to mount an action in her capacity as executrix with a view to recovering loss said to have been sustained by the estate. As Lord Brodie put it in the Matthews case, “…it is only where the deceased had a right of action that there is anything to transmit to his executor.” At lines 133-134 on page 5 of the closed record, the pursuer avers that the defender owed a duty of care, inter alia, to the deceased and his estate. For the reasons already alluded to, that proposition is misconceived.
[19] In any event, it is plain from the sheriff’s note that he was comfortably seized of the pertinent issues before him at debate. It is equally plain that the manner in which both grounds of action were dealt with by the sheriff was entirely correct. The sheriff deals with matters particularly at paragraphs [5], [6] and [7]. The content of these paragraphs is, to my mind, beyond criticism. I have no hesitation in supporting the sheriff’s approach. It accords with the law of Scotland. I have, accordingly, adhered to his interlocutor to that extent.
[20] With regard to the question of expenses, it was recognised in the course of the appeal that the pursuer faced two significant hurdles. Firstly, it is a long established principle that appeals in relation to awards of expenses are generally to be discouraged for well documented reasons. Secondly, the decision taken, in this instance to find the pursuer personally liable for the expenses of the action (as opposed to her being liable qua executrix), was a decision which lay entirely within the discretion of the sheriff at first instance. For any appellate court to interfere with the exercise of that discretion it would require to be demonstrated that the sheriff was so plainly wrong or that the sheriff had acted irrationally all with a view to supporting the conclusion that his decision in regard to expenses could not be supported.
[21] Having had the opportunity to consider what appears within the sheriff’s note and to have digested the competing arguments advanced in the course of the appeal, I have concluded that there is no proper basis such as would entitle me to interfere with the manner in which the sheriff dealt with the award of expenses. Indeed, it follows from the view I have reached regarding the fallacious nature of both grounds of action that the sheriff was, in the circumstances, eminently well placed and entitled to summarise the issue as he did within paragraph [9] in his note. As the sheriff observes, it is difficult to understand why the pursuer and her advisors did not pursue a more straightforward remedy open to any aggrieved beneficiary in the present circumstances.
[22] Accordingly, I have also adhered to the sheriff’s interlocutor regarding the award of expenses against the pursuer. Similarly, in the context of the appeal procedure, there is no reason why I should not follow his example. Whilst it is, I regret, conceivable that the pursuer’s written pleadings required to be ventilated in the course of the debate at first instance, I do find it difficult to accept that, with the benefit of the sheriff’s opinion and in the face of legal clarity, the pursuer and/or her solicitors should have chosen to persist in further procedure by way of this appeal.