SHERIFFDOM OF GRAMPIAN, HIGHLAND AND ISLANDS AT ABERDEEN

Act: Morgan, Advocate Alt: Ennis, Advocate

ABERDEEN, 03 April 2012.

The Sheriff, having resumed consideration of the cause, sustains the Defender's plea-in-law 1 and dismisses the Action; meantime reserves the question of expenses of the debate and appoints parties to be heard thereon at 10am on 18 April 2012. .

Sheriff Marysia Lewis

NOTE:

Introduction

[1] JH and the Defender are husband and wife. They separated in July 1997. In May 1999, JH was involved in an accident as a result of which he suffered catastrophic injuries. The Pursuer was appointed as his Curator bonis in August 2000 and this led to his appointment as Financial Guardian in April 2002. On 28 October 2009, the appointment was renewed without limit of time and subject to standard powers, including the power to raise or defend any court actions.

[2] The Pursuer has raised an action of divorce on behalf of JH, relying on his general power to litigate. Both parties seek orders for financial provision following divorce under the Family Law (Scotland) Act 1985. More fundamentally, the Defender does not wish to be divorced. She maintains that the Pursuer does not have title to sue.

Legislation, authorities and text books

[3] Adults with Incapacity (Scotland) Act 2000 - ("the 2000 Act").

Divorce (Scotland) Act 1976 - ("the 1976 Act").

The Ordinary Cause Rules 1993 - ("the OCR 1993).

Rules of the Court of Session.

Court of Session Practice - Loose leaf edited by Lord MacFadyen.

Macphail on Sheriff Court Practice, 3^rd Edition.

Adult Incapacity - Adrian D Ward.

Symington v Campbell 1894 21R 434.

Doughty Shipping Company v N B Railway 1909 1 SLT 267.

Bentley v MacFarlane 1964 SC 76.

Lanarkshire Health Board v Banafaa 1987 SLT 229.

McLean v Glasgow Corp. 1933 SLT 396.

Shaw v Shaw's Trustees (1876 3R 813).

The Defender's submission

[4] Ms Ennis invited me to sustain her preliminary plea 1, and to dismiss the action as incompetent on the basis that the Pursuer does not have title to sue. She most helpfully tendered a draft written submission, which she supplemented during the debate.

[5] To raise an action, a Pursuer must have capacity and title and interest. Adults are presumed to have legal capacity. They have the right to manage their own affairs including raising and defending actions in Court. Prior to the commencement of the 2000 Act, a person under disability could not raise an action. The proper course, in those circumstances, was to apply to the Court for the appointment of a curator bonis at whose instance the action might proceed. (Macphail, para 4.07) The office of curator bonis was abolished by the 2000 Act whereas curators ad litem were not so abolished. It remains the law that where, in an action of divorce or separation, it appears to the Sheriff that the Defender is suffering from mental disorder, the Sheriff must appoint a curator ad litem. (Rule 33.16 of the OCR 1993 & s11 of the 1976 Act) There is no equivalent rule for a Pursuer.

[6] The 2000 Act sets out a statutory framework for intervention in the lives of adults who are incapable of managing some or all of their affairs. JH is incapable within the meaning of s1(6) of the 2000 Act. He lacks capacity to raise an action of divorce. The Pursuer was appointed by the Court as his Financial Guardian and was granted certain power, including a general power to litigate on behalf of JH. The Pursuer has capacity to act on behalf of JH but only within the scope of his powers.

[7] A Pursuer also requires title to litigate (MacPhail para 4.29). In order to have title to sue in an action of divorce, a Pursuer must be married to the Defender at the time of raising the proceedings. Title to sue must be held at the time of raising the proceedings (Court of Session Practice para G[12]). A Financial Guardian may seek to have conferred upon him "power to pursue or defend an action of declaratory of nullity of marriage, or of divorce or separation" in the name of the Adult (s64(1)(c) of the 2000 Act). That power was not sought by the Pursuer in April 2002.

[8] The Pursuer lodged a Minute (No. 6/1/1 of Process) seeking renewal of his appointment. The Minute sets out the basis on which the orders and powers were sought. He did not seek, within that Minute, power under s64(1)(c) to pursue an action for divorce. In any event there are no averments supportive of such a power. Yet, in this action of divorce the Pursuer avers in article 1 that JH had taken advice from his solicitors and intimated an intention of raising divorce proceedings. There is no specification of when, from July 1997 until May 1999, this advice was tendered. No explanation is offered as to why the intention was not earlier acted upon. The general power of a Financial Guardian to litigate does not include, nor extend to, the very specific power to raise or defend divorce proceedings under section 64(1)(c). In the absence of this power, the Pursuer has no title to raise this action and the action must be dismissed.

The Pursuer's submission

[9] Miss Morgan moved that I repel the Defender's plea in law 1 and thereafter sist the cause to enable the Pursuer to make a separate application to complete his title and that by seeking appropriate power under section 64(1)(c) of the 2000 Act.

[10] She accepted that the Pursuer must have a title to sue at the date of raising the action and a continuing title to pursue the action to final judgment but pointed to an exception to that generality. At the date of the raising of the action, the Pursuer must have a title to sue or at least a substantial right which requires merely a subsequent formality to complete it (MacPhail, para 40.32, page 158). That exception applies here. The Pursuer does not have the benefit of the specific power under section 64(1)(c) of the 2000 Act but he does have a general power to litigate. That confers upon the Pursuer a substantial right to litigate on behalf of JH. The Pursuer had sufficient capacity and title to commence the current proceedings. His title requires a subsequent formality to permit him to complete the proceedings. In support of her position Miss Morgan referred to Symington v Campbell. In that action, the Purchaser of a vessel brought an action for damages against Campbell for injuries done to the vessel prior to the date of purchase. He raised proceedings on 28 June 1893 and the following day obtained an assignation from the seller of all claims competent to him against Campbell. Notwithstanding that a plea of no title to sue was upheld, Lord Adam observed at page 437 - "It has been suggested that this case is like that of executors who have been held able to sue competently before getting confirmation and that in consequence it is competent for the pursuer here to sue. But the difference between the cases is that the executors had a good title at bottom, which they only required to have formally made absolute, while the pursuer here had absolutely no title, till the assignation had been entered into." In her submission, the Pursuer has "a good title at bottom".

[11] This theme - that if there is an underlying right, there is scope to rectify any defect in title going forward - continues in subsequent authorities.

In Doughty, the Court observed "There was here, therefore, not a radical defect in title as in Symington's case, but a title which was - to use Lord Adam's language - a good title at bottom, which they only required to have formally made absolute."

Although it was held in Bentley that the Pursuer, having no title at the start of the action, could not acquire one retrospectively, Lord Clyde observed "There have ... been cases where a pursuer's title to sue has been affirmed although that title was not complete or was subject to some qualification. Provided that basically the title is in the pursuer, his title to sue will be vindicated and he may complete the steps required to clear his title of defects or qualifications during the action."

In Lanarkshire Health Board, a plea of no title to sue was taken where an assignation was granted after an action was raised. In the circumstances of that case, the Court held that the pursuers had averred a nexus between them and the defender at the time of raising the action, that they had become the true creditors in the contract and that the defective title was cured by the later assignation.

[12] The Pursuer has "a good title at bottom" for he has power to litigate. He falls within the exception identified in MacPhail. He requires a formality to enable him to complete his title, namely making a separate application for an extension of his powers. The Court may authorise such a step. In Shaw v Shaw's Trustees the Court sisted an action for accounting pending an application being made to prove the tenor of two assignations. In MacLean v Grampian Council the Court sisted an action for damages at the instance of a father for the death of an illegitimate child, pending the raising of an action of declarator of legitimacy.

Reply

[13] Miss Ennis submitted that the Pursuer does not fall within the exception. He does not have "a good title at bottom". He raised an action involving status without appropriate power to do so. The action is incompetent ab initio and cannot proceed any further. The authorities are of no assistance for they have nothing whatsoever to do with the matter of status.

Decision

[14] It is a basic principle of our law that a party to an action must not only have the capacity to raise and maintain or defend it; he must also have title and interest to do so (MacPhail, page 157 para 4.29). Some people lack capacity and are so prevented, either absolutely or conditionally, from suing or being sued.

[15] The pleadings reveal that JH married KH on 28 July 1979. There are three children of the marriage all over the age of 16 years: T, G and J. On or about 08 July 1997 JH and KH separated and have not lived together since that date. JH was involved in a serious motor accident on 22 May 1999 as a result of which he suffered catastrophic injuries resulting in paralysis and severe brain damage. He was, and still is, incapable of managing his affairs.

[16] The 2000 Act provides a statutory framework of intervention to cover situations where an Adult becomes incapable of managing his or her own affairs. There is ample authority to the effect that the Court must not authorise any form of intervention unless it is satisfied that it will benefit the Adult and such benefit cannot reasonably be achieved without that intervention (s1(2)). Any intervention which is made must be the least restrictive option in relation to the Adult's freedom, consistent with the purpose of the intervention (s1(3)). In determining whether and, if so, what intervention is to be made, account has to be taken of the past and present wishes of the Adult (s1(4)(a)), the views of the nearest relative and the primary carer and the views of any other person appearing to the Court to have an interest in the welfare of the Adult or in the intervention (s1(4)(b)-(d)).

[17] On 02 August 2000, GWS, the Pursuer in this action, was appointed as Curator bonis of JH. By Interlocutor of 01 April 2002, the Pursuer was appointed as Financial Guardian of JH and that for a period of 5 years. The Interlocutor was not produced. Doubtless the Sheriff was satisfied that JH was incapable within the meaning of s1(6) of the 2000 Act, and was also satisfied that having regard to the principles set out in s1(2)-(4) mentioned in the preceding paragraph, the intervention would benefit JH, that in terms of s1(2) and (3) of the 2000 Act those benefits could not reasonably be achieved without intervention and that the appropriate form of intervention was a Guardianship Order limited to 5 years.

[18] The Court may confer upon a Guardian certain powers under s64(1) of the 2000 Act . The powers fall into five categories (Adrian D Ward, para 10-29). These are:-

(i) power to deal with such particular matters as the Order may specify in relation to relevant matters;

(ii) power to deal with all aspects of the Adults personal welfare or with such aspects as may be specified in the Order;

(iii) power to pursue or defend in the name of the Adult an action of declarator of nullity of marriage or of divorce or separation;

(iv) power to manage the Adult's whole property or financial affairs or such parts as may be specified in the Order; and

(v) power to authorise the Adult to carry out such transaction or categories of transactions as the Guardian may specify.

Given that the Interlocutor of 01 Aril 2002 was not produced, I do not know the nature and extent of the powers conferred upon the Pursuer.

[19] Shortly prior to the expiry of the 5 year period, the Pursuer lodged at Aberdeen Sheriff Court a Minute (No. 6/1/1 of Process) in which he sought renewal of his appointment as Financial Guardian under s60 of the 2000 Act. By Interlocutor of 28 October 2009 (No. 5/1/1 of Process) the Court renewed the appointment of the Pursuer as Financial Guardian to JH and that for an indefinite period. The Pursuer sought, and was granted, a number of powers. If it is necessary for an adult with incapacity to raise proceedings, application should be made for an intervention order or a guardianship order before action is raised (MacPhail, page 148, para 4.08). The appropriate power ought to be sought and set out clearly in the Order. The Pursuer was conferred with power to "raise or defend or compromise any actions judicial or other proceedings which JH is or may be interested in so far as they may consider necessary or expedient ...." He did not seek specific power under s64((1)(c) to raise or defend an action of divorce on behalf of JH. The Minute is silent on the matter of his separation, of his views on the matter of divorce, of the benefit to him of being divorced, of the views of the nearest relatives, the primary carer and any other person who may have an interest in this form of intervention. "Proceedings in a matter within the scope of a guardian's powers will now be brought by or against the guardian" (Ward, para 10-43). An action of divorce is not within the scope of the powers of the Pursuer in this action. Rule 33.16 of the OCR 1993 is of no assistance for that Rule applies to a Defender who is incapacitated. In my view, the Pursuer has capacity to act on behalf of JH but only insofar as authorised by his powers. He does not have the specific power to raise an action of divorce under s64(1)(c) of the 2000 Act.

[20] I am not persuaded by the argument of Miss Morgan that the Pursuer has a substantial right to raise an action of divorce by virtue of his general power to litigate. The authorities which she prayed in aid of her submission do not relate to actions involving status and are not supportive of her position. In Bentley, Lord Clyde observed "... if the action when it starts is a nullity, because the Pursuer has no title at all to initiate it, nothing that is subsequently done can cure the fundamental defect in it". Quite simply, that is the position facing the Pursuer. The general power to litigate does not cover an action of divorce, separation or declarator of nullity of marriage for those forms of action are governed by s64(1)(c). The Pursuer, for whatever reason, did not seek power to raise an action for divorce at the time of making the application for renewal. The Pursuer had no title to initiate these proceedings. That is a fundamental defect which cannot be cured by the method suggested by Miss Morgan.

[21] Counsel asked that I schedule a separate hearing on the matter of expenses and I agreed to so do.