RICHARD N.M. ANDERSON AS EXECUTOR NOMINATE OF THE LATE MRS PATRICIA ANDERSON
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2014] CSIH 73
P728/14
Lord Menzies
Lady Smith
Lord Brodie
OPINION OF THE COURT
delivered by LORD BRODIE
in the Petition of
RICHARD N M ANDERSON as executor nominate of the late MRS PATRICIA I ANDERSON, of The Sea Chest, East Voe, Scalloway, Shetland.
Petitioner;
to the Nobile Officium of the Court
for reduction of decree and suspension of diligence
Petitioner: Party
Respondents: Gale QC; Ledingham Chalmers LLP
26 August 2014
Introduction
[1] The petitioner in this petition to the nobile officium is Richard N M Anderson as Executor of the late Mrs Patricia Irvine Anderson of The Sea Chest, East Voe, Scalloway, Shetland. The respondents are Shetland Islands Council. The petition seeks reduction of a summary decree in favour of the respondents for payment by the petitioner pronounced by Lord Stewart in action A374/13 on 13 February 2014. Among the ancillary orders sought is suspension of a charge for payment served on the petitioner on 8 April 2014. The charge calls for payment of the sums found due in terms of Lord Stewart’s decree. The charge has expired without payment being made. The respondents propose to proceed to sequestrate the late Mrs Anderson’s estate.
[2] On 15 August 2014 we heard the petitioner’s motion for interim interdict and suspension ad interim of the charge served on 8 April 2014 and interim interdict of any further diligence in execution of the decree of 13 February 2014. Mr Anderson appeared as party litigant. Mr Gale QC appeared on behalf of the respondents. On 15 August 2014 we intimated that we refused the motion and that we would give our reasons at a later date. This we now do.
History
[3] The petition narrates something of the history of the dispute as between the petitioner and his author on the one hand and the respondents on the other. It relates to damage to the heritable property known as The Sea Chest that is said to have been caused by the run-off of surface water from a neighbouring housing development and road for which the petitioner holds the respondent responsible. The Sea Chest is the principal asset of the late Mrs Anderson’s estate. It is litigation in connection with the dispute in relation to the Sea Chest which has given rise to the liability now constituted in terms of Lord Stewart’s decree. The late Mrs Anderson made an application by petition for judicial review in respect of the respondent’s alleged acts and omissions in performing their statutory duties as planning and roads authority. The Lord Ordinary dismissed the petition. Mrs Anderson appealed, unsuccessfully, first to the Inner House and then to the Supreme Court where she was ordered to find security for costs in the sum of £40,000 but failed to do so. Expenses were awarded against her in respect of proceedings in the Court of Session in sums totalling £53,465.60 and costs were awarded against her in respect of proceedings in the Supreme Court in the sum of £16,752.77. These sums have been taxed. They are the sums sued for in action A374/13 and it is for payment of these sums that Lord Stewart granted summary decree. It was explained to us by Mr Gale that the respondents had considered it prudent to constitute liability against the estate by raising action A374/13 because the awards of expenses and costs had been made against the late Mrs Anderson as an individual. The respondents had not taken steps to enforce payment against Mrs Anderson given that she was elderly and infirm. When the respondents had applied for payment to the petitioner in his capacity as his late mother’s executor he had repudiated liability on the ground that the awards of expenses and costs had been obtained by fraud and were the result of bias.
[4] The respondent’s application in action A374/13 for summary decree in terms of Rule of Court 21.2 was the subject of a three-day hearing before Lord Stewart after which he took the matter to avizandum. The principal arguments canvassed at the hearing are summarised by Lord Stewart in his opinion issued on 13 February 2014, [2014] CSOH 23.
[5] Rule of Court 38.3 (1) provides that an interlocutor granting or refusing summary decree may be reclaimed against only with the leave of the Lord Ordinary within 14 days. The petitioner sought leave to reclaim Lord Stewart’s interlocutor of 13 February 2014 granting summary decree. Lord Stewart refused leave on 21 February 2014. He explains his reasons in a Note of the same date.
What the petitioner submits is inequitable
[6] The petitioner avers that surface water continues to damage The Sea Chest. There has been in dependence since August 2009 another Court of Session action, A611/09, in which the petitioner seeks reparation from the respondent in respect of the damage to The Sea Chest, founding on negligence, breach of statutory duty and nuisance. The sum sued for is £75,000. Orders are also sought in terms of section 46 of the Court of Session Act 1988 and for interdict. This was referred to in argument before us as “the nuisance action”. It is the petitioner’s position that there is substance in this action and accordingly real prospects that by way of the remedies concluded for or alternatively through mediation (which he presented as a possibility) the petitioner would be able to secure the full market value of the Sea Chest (in undamaged condition) for the late Mrs Anderson’s estate. As the petitioner put it in submission to us: the estate is not absolutely insolvent; if the house could be sold in good condition the proceeds would cover the awards of expenses and costs.
[7] However, the estate is practically insolvent. It has not been able to make payment of the sums of £53,465.60 and £16,752.77, now constituted by Lord Stewart’s decree, when charged to do so. The respondents now propose to sequestrate the estate. In that event it is highly unlikely that further steps would be taken further to pursue the estate’s claims against the respondents, whether by way of litigation or mediation. Thus, allowing the respondents to enforce the awards of expenses and costs will have the effect of preventing the petitioner from pursuing what he contends is a good claim and thereby denying the estate any remedy for the damage caused. This, the petitioner argues, would be inequitable and unreasonable, particularly given the fact that the availability of a common law remedy was one of the reasons for dismissal of the petition for judicial review (see Lord Stewart’s opinion paragraphs [45] to [47]) and for the decision of the Supreme Court to order the petitioner to provide security for costs (see [2012] UKSC 7 at paragraph 15(d)).
[8] It was a similar argument which the petitioner deployed before us in support of his motion for interim orders: the Scottish courts are courts of equity as well as law; if the respondents are allowed to enforce the decree of 13 February 2014 immediately, they will avoid addressing their responsibilities as a public authority and, contrary to the requirements of international law and legal certainty the petitioner will be deprived of any remedy; immediate enforcement is particularly inappropriate where there is the prospect of mediation, a course originally suggested by the sheriff when the matter was before him in 2006 and which has recently been discussed again, with the respondents indicating that they would agree to mediation.
The basis for the application for interim orders
[9] As we understood the petitioner’s oral submissions, his application was an appeal to the extraordinary equitable jurisdiction of the court; there was nothing that the court could decide which would take away the estate’s liability for the awards of expenses and costs but having regard to equity, the respondents should be prevented from enforcing that liability for the time being. Similarly, the petition is stated in terms as being made to the nobile officium of the court. However, while the thrust of the petitioner’s oral submissions was aimed at what he argued was the unfairness of the respondents being able to prevent him from pursuing the nuisance action, the thrust of the petition is what is averred to have been the incompetence of Lord Stewart’s decision. That suggested a divergence of approach. The court therefore asked the petitioner to confirm that, as one would expect where an application is made for interim orders, any grant of interim orders would depend on the court being satisfied that a prima facie case was made out in the petition for the substantive remedy sought, in other words that he could only succeed in obtaining interim suspension and interim interdict if he could satisfy the court that he might be entitled to reduction of the summary decree of 13 February 2014 for the reasons averred in the petition. The petitioner confirmed that that was so.
Decision
[10] Were it open to us to determine the application for interim orders in favour of the petitioner on the basis that it was unfair or inequitable that the respondents should be entitled to enforce a liquid debt in circumstances where by doing so they will prevent the petitioner from pursuing an illiquid claim for reinstatement or damages, we would not do so. The late Mrs Anderson’s estate has incurred a liability to the respondents. The petitioner accepts that. We see nothing unfair or inequitable in the respondents seeking to enforce that liability. That the petitioner may have an as yet illiquid claim against the respondents does not alter that. Nor does the fact that the estate does not currently have sufficient cash to meet the liability to the respondents. These are by no means uncommon circumstances. The petitioner argued that the estate’s position is special in that the refusals of the reclaiming motion and then appeal against dismissal of the petition for judicial review were because (and only because) of the availability of the common law remedy which was being pursued by way of the nuisance action. That is not our understanding of the opinion of the Extra Division in Anderson v Shetland Islands Council and Others [2010] CSIH 15 or the judgment of the Supreme Court in the same case, [2012] UKSC 7, but even were it otherwise the fact would remain that the estate was found liable in expenses and costs which liability, once taxed, became immediately exigible.
[11] We are therefore against the petitioner on his contention that it is inequitable to allow the respondents to enforce the liability now constituted in the summary decree of 13 February 2014. In addition, we consider that the petition does not disclose a prima facie case. It is incompetent and irrelevant. For these reasons also the application for interim orders must be refused.
[12] This is not the occasion to explore the nature and extent of that aspect of the jurisdiction of this court referred to as the nobile officium. We do not dispute the petitioner’s description of all Scottish courts as courts of equity as well as law (cf Gibson’s Trs 1933 SC 190, Lord President Clyde at 198) although in framing his petition in the way he has and presenting it to the Inner House it is evident that the petitioner acknowledges that he seeks an extraordinary remedy which only this court has jurisdiction to grant. It may not be possible to define the limits of this jurisdiction but it must be subject to limits if judicial decision-making is not to become entirely arbitrary (cf Stair, Institutions IV.3.1). At least some of these limits are readily identifiable. The nobile officium is only to be exercised in exceptional circumstances and for compelling reasons; as the petitioner conceded, the court will not readily exercise the nobile officium in cases where there is no precedent: Horne’s Trs 1952 SC 70 at 72, Royal Bank of Scotland plc v Gillies 1987 SLT 54 at 55; and there can be no justification for an application of the nobile officium where another remedy is available, whether or not that remedy has been resorted to: Central Motor Engineering Co v Gibbs 1917 SC 490, Lord Skerrington at 493, Forth Shipbreaking 1924 SC 489 at 493. That latter consequence of the nature of the nobile officium also applies more generally in respect of the remedy of reduction: Adair v David Colville & Sons 1926 SC (HL) 51 at 55-56, Royal Bank of Scotland plc v Gillies supra. For that reason alone the petition is incompetent. It seeks reduction of a summary decree granted in foro. In terms of Rule of Court 38.3 (1) an interlocutor granting or refusing summary decree may be reclaimed against, but only with the leave of the Lord Ordinary. The petitioner has been refused leave to reclaim. The petition is an attempt to present a reclaiming motion under another guise.
[13] The petition is also irrelevant. At statements 13 to 19 the petitioner avers that Lord Stewart’s decision was “incompetent” and therefore should be reduced, for a number of reasons: (1) it was not competent for a Lord Ordinary to decide that it was not inequitable or unreasonable for the respondents to enforce the awards of expenses and costs in order to avoid having to answer the claims made in the nuisance action; (2) no court has addressed its obligation to consider the late Mrs Anderson’s claim that her fundamental rights under article 8 of the European Convention on Human Rights had been breached; (3) were the respondents to have been in breach of their duty of candour in relation to any plan for the collection and treatment of surface water no avenue is left by which that may be addressed; (4) the issues considered by Lord Stewart were not competent in a motion for summary decree and in any event Lord Stewart erred in law in the application of the test for summary decree; (5) where insurers have accepted that the house has subsided and now cannot be insured a citizen has been left without any remedy; and (6) by referring to the risks of adverse findings in expenses as a result of getting involved in litigation Lord Stewart failed to appreciate that the relevant litigation was an application for judicial review.
[14] It is apparent that in referring to Lord Stewart’s decision as “incompetent” the petition is not using that expression in its ordinary significance. It would seem that what is alleged is error of law. However, we do not find that made out by the petitioner’s averments. In large part what appears in statements 13 to 19 is a reiteration, in a number of ways, of the petitioner’s complaint that it is inequitable that he be prevented from pursuing the nuisance action. It does not appear that an argument was advanced to Lord Stewart under reference to the Convention on Human Rights. Even on the petitioner’s averments it is entirely speculative as to whether the respondents have been guilty of breach of a duty of candour. The issues considered by Lord Stewart reflected the extensive submissions made to him many of which bore no direct relation to the issue before him, namely whether or not the respondents were entitled to summary decree. He was fully aware that the estate’s liability had been incurred in proceedings for judicial review. Critically, the question to be determined by Lord Stewart in terms of Rule of Court 21.1 was whether any defence was disclosed to action A374/13. He was satisfied that there was none. There is nothing in the petition, and indeed nothing that was said to us by the petitioner, to challenge that conclusion. No relevant case has been put forward that Lord Stewart erred.