Act: Mr J G Moore, Solicitor, Motherwell

Alt: Mr J Quinn, Solicitor, Glasgow

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AIRDRIE: 17 April 2014

The Sheriff Principal, having resumed consideration of the cause, finds the appeal to be incompetent; and adheres to the sheriff's interlocutor of 25 March 2014 complained of; remits the cause to the sheriff to fix a hearing on the competency of proceeding with the action as framed, and in particular for parties to address the court on the pursuer's title to recover possession in the knowledge that there is in fact a will; finds the pursuer personally liable to the defender in 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.

Note : Background to the Appeal

[1] This is a summary cause action which was raised by the pursuer, who is the brother of the defender, as executor dative of his mother, Agnes McFadyen. He seeks to obtain a decree against the defender removing her, her family sub tenants and dependents (if any) with her goods and possessions from the property at 19 Sykeside Street, Coatbridge. The action proceeds on the basis that the pursuer is the executor-dative of the parties' late mother, conform to confirmation issued at Airdrie on 9 February 2012. Subsequent to the raising of this action the late mother's will was discovered in which she nominated the parties as joint executors. The will contained a specific legacy in the following terms:-

"I direct my executors to make over the interest in my house at 19 Sykeside Street aforesaid or any house occupied by me as my usual residence at the time of my death, free of all expense of transfer, heritable debts and securities and other capital burdens affecting my interest in the house at the time of my death, to my daughter, the said Rochelle McFadyden together with all my articles of personal, domestic household, garage, garden or lesser use, ornament or consumption and that on condition that my daughter the said Rochelle McFadyen shall pay over to my son the said John Gilmour McFadyen a one half share of the market value of my said house at the time of my death, said market value to obtained from a reputable chartered surveyor to be appointed by my executors."

Despite the admitted existence of this will, the action at the instance of the pursuer as executor dative has proceeded in court.

[2] On 8 November 2012 the sheriff pronounced the following interlocutor

"There being no objection, grants part one of the defender's incidental application number 4 of process, quoad ultra discharges the proof assigned for 5 December 2012 and sists the cause for negotiations.

At that time the existence of the will was known to both parties and indeed had been known to them at the first calling of the case on 29 May 2012. A note was appended to the interlocutor of 8 November 2012 in the following terms:-

"The defender having given an undertaking to co-operate with the sale of the property at 19 Sykeside Street, Coatbridge, to keep it clean and tidy and in a suitable condition for sale, to co-operate with the marketing and viewing of the property and provide a set of keys to the estate agent for that purpose; both defender and pursuer having given an undertaking to co-operate with the estate agent all on the proviso that the defender be allowed to stay in the property until the date of entry on sale. Reserves meantime the question of expenses."

At the time the case was sisted, the sheriff had been in the course of hearing two Incidental Applications, one at the instance of the pursuer for summary decree, and one at the instance of the defender to remit the cause to the Ordinary Role under Rule 16 of the Summary Cause Rules.

[3] The case called before the sheriff on 25 March 2014 in respect of an incidental application lodged on behalf of the pursuer in the following terms:-

"Moore for the pursuers moves the court to recall the sist granted on 8 November 2012 and grant decree in favour of the pursuer's together with the expenses of the action."

[4] The sheriff on 25 March 2014, having heard parties, pronounced the following interlocutor;-

"The sheriff, having heard parties on the pursuer's incidental application for decree by default and for expenses of the cause; refuses same; thereafter assigns 15 April 2014 at 10 am as a hearing on the competency of proceeding with the action as framed, and in particular for parties to address the court on the pursuer's title to recover possession in the knowledge that there is in fact a will."

[5] The sheriff was asked to grant decree by default as it was contended that the defender had failed to comply with the undertakings given in court on 8 November 2012 and that therefore missives for the sale of the property could not be concluded. In her note the sheriff states;-

"Decree by default is governed by Summary Cause Rule 22.1. Paragraph (3) thereof provides that "If ...a party fails to implement an order of the court, the sheriff may, after giving him an opportunity to be heard, grant decree by default. Accordingly the question is raised as to whether a failure to comply with an undertaking is itself a breach of a court order. No authority was presented to me in support of that proposition, but in any event I was satisfied that in the circumstances of this case the undertakings given did not amount to a "court order". The undertakings in question were not "ordered" by the court, and were not recorded as part of the interlocutor, but merely in a note appended thereto. Failure to comply with them, if established, might have consequences in relation to contempt of court, but did not justify granting decree by default.

I considered whether, despite my view, I should still exercise my inherent discretion to grant decree by default. I decided not to. Having heard parties, whilst it was clear that there had been difficulties in the progress of this case, the bottom line was that there was an outstanding offer to purchase 19 Sykeside Street on the table, and the only outstanding issue in relation to the sale was deciding on the date of entry.

The pursuer conceded that the defender was under no obligation to "remove herself" from the property before the date of entry. The first discussion of a date of entry did not arise in relation to this prospective sale until the buyer's offer of mortgage had been confirmed. In the event, that did not occur until 13 March 2014. By letter of 14 March 2014 the pursuer suggested to the defender a date of entry of 21 March 2014. I did not think it unreasonable that the defender should refuse that date of entry on 4 days' notice to move out. The defender had suggested an alternative date in early April. As at the hearing before me, the date of 4 April 2014 or shortly thereafter was still being put forward. None of that appeared to be unreasonable. There was no real reason put forward as to why the sale should not proceed then.

In those circumstances I was not prepared to grant decree by default. However, anent the sale of 19 Sykeside Street it remains to be seen how parties can complete title.

I refused at this juncture to consider expenses or any other motion. That was because I expressed my serious concerns as to the propriety of continuing this action during the currency of winding up the estate, where confirmation was only granted to the pursuer on the basis there was no will, and where parties and their representatives know that there is a will. In my view the court cannot ignore the fact there is a will, and indeed arguably the continuation of this action may be viewed as an abusive process and a contempt of court. Accordingly, I have assigned the hearing referred to above."

[6] A note of appeal was lodged on behalf of the pursuer in the following terms:-

"The pursuer appeals the sheriff's interlocutor of 25 March 2014 to the Sheriff Principal and requests the sheriff to state a case.

The points of law upon which the appeal is to proceed are;

(1) The sheriff erred in law in fixing a hearing on the question of competency, the question of competency having been determined at the first calling of the case on 29 May 2012 in terms of Rule 8.3 of the Summary Cause Rules.

(2) The sheriff erred in law in questioning the competency of the pursuer's appointment as an executor in terms of confirmation issued at Airdrie Sheriff Court on 19 February 2012. Said appointment can only be recalled by way of an action of reduction at the Court of Session. The sheriff accordingly erred in law in considering fixing a hearing on the question of the competency of the appointment.

(3) The sheriff erred in law in failing to grant the pursuer's motion for decree by default deciding that the undertakings given at court did not form part of the court interlocutor.

(4) The sheriff erred in law and exercised her discretion unreasonably in failing to grant the pursuer's motion for decree by default. No reasonable sheriff in considering the circumstances of the case would have failed to grant the pursuer's motion.

[7] On my instructions my secretary wrote to both solicitors on 11 April 2014 in the following terms;-

"The Sheriff Principal has asked me to write to you, for the avoidance of doubt, to explain his interlocutor in which he fixes 15 April 2014 at 10.30 am as a hearing of the appeal in this case.

The hearing is properly to be described as a hearing on the competency of appealing at this stage. If he considers the appeal competent at this stage, the Sheriff Principal will require the sheriff to state a case. The Sheriff Principal would refer you to the terms of Rule 25.1 which allows appeal "after the date of final decree" and to Macphail 3^rd edition paragraph 31.33 which provides that a party may appeal to the Sheriff Principal on any point of law "from the final judgement of the sheriff".

In this case the sheriff would appear not to have given a final judgement. The hearing on 15 April 2014 will be restricted to this point."

[8] Parties lodged written submissions and I heard parties on the appeal on 15 April 2014 in Airdrie Sheriff Court. Solicitor for the pursuer indicated that he would restrict his submissions to the first two points of law in his Note of Appeal, both of which attacked the competency of the sheriff's interlocutor of 25 March 2014. I deal with these in turn, recording the submissions of parties and then giving my opinion:-

(1) The sheriff erred in law in fixing a hearing on the question of competency, the question of competency having been determined at the first calling of the case on 29 March 2012 in terms of Rule 8.3 of the Summary Cause Rules.

Submissions for the Pursuer

[9] Rule 8 of the Summary Cause Rules 2002 provides that where a form of response is lodged a hearing shall be held on the calling date. Rule 8.3(1) provides;-

"If, at the hearing, the sheriff is satisfied that the action is incompetent or that there is a patent defect of jurisdiction, he must grant decree of dismissal in favour of the defender..."

Solicitor for the pursuer submitted that at the first calling on 29 May 2012, when it was known that a will had come to light, the sheriff ex proprio motu sisted the matter for investigation. At that time the sheriff did not declare that the action was incompetent in terms of Rule 8.3(1). In these circumstances, it was submitted, it should be assumed that the sheriff was content that the action was competent.

[10] The sist was recalled and the next hearing was on 8 November 2012 where the sheriff was required to deal with an incidental application to allow summary decree on behalf of the pursuer and an incidental application to remit the cause to the Ordinary Cause Role on behalf of the defender. The hearing on 8 November 2012 was part heard. During the course of the hearing, an accommodation was reached by the parties. The matter was sisted on the basis of reciprocal undertakings which are recorded in para 2 hereof. Again there was the opportunity for the sheriff to consider the question of the competency of the action, but the sheriff chose not to declare that it was incompetent.

[11] On 21 January 2014 that sist was recalled and on 25 March 2014 the case called before the sheriff in respect of an incidental application lodged by the purser seeking decree by default and expenses on the basis that the defender had failed to comply with the undertakings given in foro on 8 November 2012. The sheriff refused the pursuer's incidental application and ex proprio motu assigned 15 April 2014 as a hearing on the competency of proceeding with the action as framed, and in particular for parties to address the court on the pursuers title to recover possession in the knowledge that there was in fact a will.

[12] It was submitted that the sheriff erred in law in fixing a hearing on the question of competency as the question of competency had been determined at the first calling of the case on 29 March 2012 in terms of Rule 8.3 of the Summary Cause Rules.

Submissions for the Defender.

[13] It was submitted by solicitor for the defender that because the question of competency was not looked at by the sheriff on 29 May 2012 that did not shut off the question of competency being raised by either party or by the court at any future date. When the case first called on 29 May 2012 the existence of the will had come to light which gave the defender a colourable right to continue to occupy the property. It also made it clear that the defender and the pursuer were entitled to be appointed executors nominate.

[14] It was conceded that the sheriff did not consider the question of competency at the hearing on 8 November 2012 and the case was sisted after hearing certain argument in respect of two separate incidental applications. However, it was submitted that this did not prevent any party, including the Court, raising the question of competency at a later date.

Decision

[15] This ground of appeal fails. Rule 8.3(1) gives the sheriff power to grant decree of dismissal if, at the initial hearing, the sheriff is satisfied that the action is incompetent. However, in my opinion the competency of an action is something which can be noted by either party or by the court at any time during the course of a litigation. In my opinion it was open to the sheriff when she heard the incidental application for decree by default on 25 March 2014 to be concerned about the competency, appropriateness and indeed propriety of proceeding with the action as framed. She was entitled to require parties to address the court on the pursuer's title to recover possession in the knowledge that there was in fact a will. It was not without significance that this was an action for recovery of heritable property. The pursuer's right was based on his appointment as executor dative. That appointment was made on a petition to the court which included a sworn statement by the pursuer that there was no will. By the time the case first called in court, the existence of a will was known. This, in my opinion, raised several questions which the sheriff was entitled to discuss with parties, especially in view of the manner in which this action had proceeded. I do not accept that, because the issue was not raised with the sheriff at the first calling, the case is deemed to be competent. In any event the sheriff makes it clear in her interlocutor that she is not fixing a hearing on the competency of the action. She is fixing a hearing on "the competency of proceeding with the action as framed, and in particular for parties to address the court on the pursuer's title to recover possession in the knowledge that there is in fact a will." In my opinion the sheriff was well entitled in the whole circumstances of this case to fix such a hearing.

(2) The sheriff erred in law in questioning the competency of the pursuer's appointment as an executor in terms of confirmation issued at Airdrie Sheriff Court on 19 February 2012. Said appointment can only be recalled by way of an action of reduction at the Court of Session. The sheriff accordingly erred in law in considering fixing a hearing on the question of the competency of the appointment.

Submissions for the Pursuer

[16] It was submitted there was no provision in the Summary Cause Rules for the sheriff ex proprio motu to fix a hearing on competency. It was submitted that the interlocutor was ex facie irregular. The sheriff was in fact fixing a debate and there was no power in the Summary Cause Rules to fix a debate. It was pointed out that, the sist having been recalled, there were still two outstanding incidental applications before the court, which had been part-heard when the case was sisted on 8 November 2012. There was a motion for summary decree on the part of the pursuer and for a remit to the Ordinary Role on the part of the defender. It was submitted the sheriff was acting out with her powers in fixing this hearing.

Submissions for the Defender

[17] Solicitor for the defender indicated that the sheriff had expressed concerns about the competency and appropriateness of this action at the instance of the pursuer in view of the existence of the will at the part-heard hearing on 8 November 2012. It was submitted it was always the intention of the defender to challenge the appropriateness of this action, the pursuer's title to sue, and the question of his entitlement to exist as an executor dative when his status as an executor dative was reduceable. The contents of the will could not be ignored. It was submitted that the sheriff had a duty to consider questions of competency and abuse of process. In assigning this hearing, she was asking to be addressed on these issues. The existence of the will was what solicitor for the defender described as a "game changer". The sheriff was entitled to fix a hearing to allow parties to address the court on the pursuer's entitlement to recover possession of the property in the knowledge that there was a will which provides the pursuer and defender were to be joint executors. It was submitted that the fundamental requirement of any action raised was that the pursuer could demonstrate that he had right and title to raise the action. In view of the admitted existence of the will, the sheriff was well entitled to fix a hearing on the competency of proceeding with the action as framed, and in particular for parties to address the court on the pursuer's title to recover possession in the knowledge that there is in fact a will.

Decision

[18] I accept the submissions made on behalf of the defender. The pursuer in this ground of appeal misunderstands the sheriff's interlocutor. She is not questioning the competency of the pursuer's appointment as an executor in terms of confirmation issued at Airdrie Sheriff Court on 19 February 2012. She is fixing a hearing on the competency of proceeding with the action as framed, and in particular requesting parties to address the court on the pursuer's title to recover possession in the knowledge that there is in fact a will. This is something that goes to the root of the current litigation and the sheriff is well entitled to ask to be addressed on these issues. There is accordingly no merit in the points of law raised before me by the pursuer to allow me to consider any departure from the normal arrangement set out in Rule 25.1 which allows appeal only "after the date of final decree". In addition, there is no question of the sheriff's right to require to be addressed on the issues she identifies in her interlocutor of 25 March 2014 in the circumstances of this case.

There is no over-riding issue of justice to allow me to intervene. Indeed, it is in the interests of justice that this case proceeds as envisaged by the sheriff.

Other Issues

[19] I was not asked to consider grounds 3 and 4 of the Note of Appeal and was not addressed by the parties thereon. The only issue which the pursuer and appellant wished to be decided by me was whether it was competent for the sheriff to fix a hearing before her of the nature outlined in her interlocutor of 25 March 2014. I consider that she was so entitled for the reasons which I have given. I have accordingly refused this appeal and remitted the cause to the sheriff to fix a fresh hearing of the nature stated in her interlocutor of 25 March 2014.

[20] I now deal with the expenses of the appeal. Solicitor for the defender submitted that, if I was with the defender, I should award the expenses of the appeal against the pursuer personally and not as executor dative. It was submitted in the whole circumstances of this case that the pursuer had acted unreasonably in pursuing this appeal. If I awarded the expenses of the appeal against the pursuer as executor dative, the defender would have to pay one half of her expenses in successfully defending this appeal from the estate of which she was a beneficiary. In these circumstances the expenses should be awarded against the pursuer personally. Solicitor for the pursuer submitted that, if I was against him in respect of the appeal, I should award the expenses against the pursuer as executor dative.

[21] In my opinion, in the whole circumstances of this case, the pursuer acted unreasonably in pursuing the appeal. The pursuer was appointed executor dative on the basis that there was no will. Before this case called for the first time, it was known to the pursuer that there was a will in existence which appointed himself and the defender as joint executors. I must confess it is difficult to understand why, in these circumstances the pursuer has continued with this action in which he seeks to have the defender removed from the property on the grounds that she has no title to be there. I am of the view that the sheriff's purpose in fixing the hearing which she did "on the competency of proceeding with the action as framed, and in particular for parties to address the court on the pursuers title to recover possession in the knowledge that there is in fact a will" was a reasonable and proper step to take. I consider the pursuer acted unreasonably in appealing that interlocutor. In these circumstances I have found the pursuer personally liable to the defender in the expenses of the appeal.