Act: Mrs. Scott , QC; Wilson; Morton Fraser
Act: J.J. Mitchell, QC; M. Stuart; Biggart Baillie (second defender)
(Party not taking part - First Defender)

8 July 2009

[1] This is a reclaiming motion in an action for divorce which concludes inter alia for payment of a capital sum of £20,000,000 and for the "setting aside and reduction" of a Deed of Trust executed by the first defender in 2005. The trustees have been convened as second defenders and, as might be expected, there is also a conclusion for interdict and interdict ad interim against the trustees intromitting with the trust estate without the consent of the pursuer or leave of the Court. By interlocutor dated 8 May 2009 the Lord Ordinary granted interim interdict in accordance with that conclusion, albeit in restricted terms.

[2] The Lord Ordinary was satisfied that the pursuer had a prima facie case to seek an order for the "setting aside" of the Trust Deed and at a later point in her Opinion states that, if she had the power, she would not hesitate to "grant interim interdict...in order to ensure that the trust property was protected and not disposed of pending the outcome of the litigation". Somewhat remarkably, however, it was submitted on behalf of the second defenders that, even standing the conclusion for reduction, the pronouncing of interim interdict was incompetent and this gave rise to a debate lasting at least two days and the present reclaiming motion. Although the debate in the Outer House appears to have centred on interim interdict the real question must be whether the conclusion for interdict, as such, was competent since it is expressly provided by what is now section 47(1) of the Court of Session Act 1988 that, in any case where there is a conclusion for interdict, it is competent for the Court to grant interim interdict.

[3] The argument for the pursuer and respondent was, and remains, that the concluding words contained in section 18(2) of the Family Law (Scotland) Act 1985 - "or such other order as it thinks fit" - covered the situation. As against that it was submitted by counsel for the reclaimers that the pursuer had no legal relationship with the trustees of the settlement in question and that no warrant could be found in the Act for interdicting third parties.

[4] In our opinion the submissions advanced on behalf of the reclaimers are without foundation. What section 18 does permit is a conclusion for the "setting aside" of a transaction involving property and in the present case that involves the reduction of a probative Deed of Trust. That, in turn, involves the convening of the trustees as second defenders and, as in any action involving reduction, the right so to convene them in our opinion carries with it the right to direct against them ancillary conclusions proper to a reduction process, such as interdict. There is no reason in our opinion why an order made in pursuance of such a conclusion should not fall within the concluding wording of section 18(2) of the Act in question.

[5] Having said all that we confess that, even without that wording, we would have had no difficulty in reaching precisely the same conclusion simply on the basis that a conclusion for interdict is very commonly and necessarily ancillary to a conclusion for "setting aside" or reduction. Indeed, as counsel for the reclaimers pointed out, the predecessor legislation of section 18 to be found in section 27 of the Succession (Scotland) Act 1964 and section 6 of the Divorce (Scotland) Act 1976 contained no such wording and yet we have no doubt that where reduction was involved interdict and interim interdict against third parties would have been perfectly competent. Leslie v Leslie 1987 S.L.T.232 is a clear example of a case where one finds just such an ancillary conclusion without, it seems, demur or adverse comment by either counsel or the Court.

[6] For both the above reasons, therefore, this reclaiming motion is refused.