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MARIAN VAN OVERWAELE FOR INTERDICT


OUTER HOUSE, COURT OF SESSION

[2009] CSOH 164

OPINION OF LADY DORRIAN

in Petition of

MARIAN VAN OVERWAELE

Petitioner;

For interdict

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Petitioner: Party

Respondent: McCormack; Drummond Millar

10 December 2009

[1] This case called before me for a hearing on 10 November 2009. The action is a petition for interdict in which the petitioner for the most part has been a party litigant. The petition arises out of the sequestration of the petitioner in January 2000 and she seeks to interdict the respondent, the permanent trustee, from seizing or disposing of property forming part of the estate. The nub of her petition is that sequestration was wrongly granted. She avers that it proceeded in respect of a sum which was under the sequestration limit of £1,500 and is therefore invalid. In the petition she states that she has always disputed "the circumstances of service of the sequestration writ" without giving further specification. She also avers that, on becoming aware of the sequestration, she paid £1,800 towards the "so-called debt" and to have the sequestration recalled but her solicitor failed to do this. She maintains that as a result of this payment the debt has been overpaid. She makes numerous complaints about the trustee, substantially based on the fact that he continued to act as trustee on the sequestrated estates and carry out that office.

[2] The history of the case is somewhat complicated. Decree was obtained against the petitioner in Dumbarton Sheriff Court in 1997 for a principal sum of £230.87. The decree was extracted on 25 June 1998 and on 15 November a charge was served on the petitioner for a total sum of £1,573.55. That sum included interest, expenses and the cost of serving the charge. In consequence she was sequestrated on 17 February 2000 with effect from 24 January 2000. A petition for recall of the sequestration was lodged in April of that year and dismissed by Lord Hardie on 14 September that year. His Opinion is produced at 7/4 of process and it is clear that even at that stage there was a history of agents withdrawing from acting and a failure to progress matters on the part of the petitioner. The history of the sequestration shows repeated failures to co-operate with the trustee and an Order under Section 64 of the Bankruptcy (Scotland) Act 1985 was pronounced on 15 November 2000. An appeal against that was refused on 11 April of the following year. The Opinion of the Sheriff Principal in that regard is No 7/3 of process and again it appears that there has been a further history of withdrawal of solicitors and failure to progress the application. The sheriff had described the process as "redolent of delay and obstruction by the debtor" and it appears that the Sheriff Principal agreed. It is clear that at that stage an argument in relation to defective service of the original petition was advanced but it was apparent that the service was ex faice regular and such an argument could proceed no further. It was also argued that by paying the £1,800 the debt had been overpaid. The Sheriff Principal however, correctly pointed out that by this stage the trustee was acting for all the creditors in the sequestration, that application of this cheque to the principal debt which had led to the sequestration would constitute an improper preference and recorded the information provided to him that the total overall indebtedness with additional expenses now totalled a sum in the region of £30,000. A reclaiming motion from Lord Hardie's dismissal of the petition for recall was refused on 8 August 2001. Meanwhile an action for ejection was commenced in the Sheriff Court and decree in absence granted on 5 September 2002. An appeal to the House of Lords in relation to the petition for recall was dismissed on 24 October 2002. In 2003 the present petition was raised with a first order being pronounced on 11 February 2003. An application for interim interdict was refused by Lord Carloway on 1 August. In the meantime, a reponing note in relation to the action of objection was refused by Sheriff Cubie. In or about July 2003, an action for reduction was raised by the petitioner based on averments that although the pursuer was sequestrated in the amount of £1,573, "the pursuer still believes the amount is under £1,573" and that "no valid citation served on the pursuer took place". The only further specification of these averments is a bald statement at page 6 that the principal sum, alleged to be £230, was in fact £113.29 and that as a result sequestration was not competent. No specification is given of the alleged defect in service, despite detailed answers on this point on behalf of the trustee.

[3] At a hearing on 22 April 2004, Lady Smith dismissed the action for reduction. Her Opinion is No 7/6 of process. At the outset of the hearing Mr Sheldon, Advocate appeared for the petitioner and made a motion to discharge the hearing. That motion was refused by Lady Smith on the basis that the apprehension of the defenders that the pursuer was "simply seeking to indulge in delaying tactics" seemed to her to be well founded. Having refused that motion she gave counsel an opportunity to consult with the pursuer for the remainder of the morning, after which he returned with a motion for leave to amend. No specific amendment was proposed but counsel indicated that calculations given to him suggested an overpayment of £20. This would not, of course, have brought the total sum below the sequestration limit. Furthermore, there was no explanation at all as to why the proposed amendment came so late in the day. Accordingly Lady Smith refused the motion for leave to amend. As a result of that Mr Sheldon withdrew. The pursuer then asked for the diet to be discharged and for time to speak with her solicitor which was allowed. Later that afternoon a solicitor advocate appeared on her behalf but had nothing to add to what had been said by Mr Sheldon. He offered no opposition to a motion by the defenders' counsel for dismissal of the action. Lady Smith therefore granted that motion and dismissed the action. Her reclaiming motion was marked against that interlocutor and to this date the reclaiming motion has not been heard. The pleadings in the action of reduction remain as they were when the action was dismissed by Lady Smith. It is the existence of that action, pending in the Inner House, which effectively forms the legal basis upon which the petitioner seeks interdict.

[4] When the case called before me, it was on an application by the respondents to dismiss the petition with a corresponding request from the petitioner that the case should be sent to a proof before answer to enable her to offer proof of her averments. The week before the hearing two further motions had been presented by the petitioner. The first was to allow a lengthy note of adjustments and the second was to allow a specification of documents. These motions were continued to the hearing of the petition and answers due to take place on 10 November.

[5] At the outset of the hearing the petitioner was represented by counsel and solicitors. The motion advanced at the bar on her behalf was that the case should be sisted in order that a Legal Aid application could be made. No explanation was given as to why such a motion was being made so late in the day and in circumstances where it appears that she had solicitors acting for her in July of this year. I was advised that the present agents had been instructed only at the end of last week and that it was only yesterday, whilst consulting in relation to the action of reduction, that they discovered about the existence of the present petition. Having regard to the lengthy history of delay in these proceedings I was not inclined to grant that motion. I allowed counsel a brief opportunity to discuss the matter with his solicitor, after which he sought, and was granted, leave for himself and the solicitor to withdraw.

[6] Mrs Van Overwaele then addressed the court on the two motions which had been continued from last week.

[7] The note of adjustments broadly covers two matters. The first area consists of a catalogue of complaints against the conduct of the trustee since taking office. These are to some extent a rehash of complaints already made but they also include complaints that he has persisted in his behaviour, in particular that he has continued illegally to act as trustee, according to the petitioner. The second area covered by the adjustments is what seems to be a new matter altogether. This includes an averment that the petitioner did not receive notice of the charge against her on which the sequestration proceeded; (it will be recalled that the present pleadings say that she has always disputed the circumstances of service without further specification) reference to the case of Hook v Glasgow 2000 SLT 1028, which appears to be irrelevant to the issue of the petition; and an allegation that the original debt was a debt of a third party. The majority of the adjustments in the note are irrelevant and lacking in specification. I was in any event satisfied that they came too late in the day. Accordingly I refused the application.

[8] As to the specification of documents, this too largely consisted of a catalogue of complaints about the conduct of the trustee. The documents are not documents which appear to be required for the purpose of enabling pleadings in the case to be focussed and I cannot see that the application is relevant to the present petition. Accordingly I refused also the motion for specification of documents.

[9] At this stage the petitioner renewed the motion for the case to be continued to enable her to obtain Legal Aid and for the purpose of instructing a solicitor. I reminded her of the motion which I had refused earlier that morning and indicated that I would expect to be addressed on the remaining matters after lunch.

[10] The petitioner argued that the case should go to a hearing on the evidence which she had in order that a decision on the question of interdict could be made. Her position was that sequestration proceeded on a sum which was under the sequestration limit and was therefore unlawful. The appointment of the trustee was unlawful and he had acted in an unlawful way. She had asked him several times to investigate the circumstances of the sequestration and he advised her that it was not he who had sequestrated her but the sheriff. She felt that her case had never been heard despite the various attempts to obtain redress. She considered that it was necessary that the respondent be prevented from selling her property at K, Helensburgh pending the resolution of the action for reduction in the Inner House. Pressed as to the steps which she had taken to progress that action, she fell back on the argument that she had been relying on her solicitor for a period of 4 1/2 years in an effort to have the case finalised. Her present solicitors were trying to obtain Legal Aid to enable that to be done. (They had indeed submitted that that was the case and that they would continue to do so despite withdrawing from the present proceedings). On several occasions during the course of her address, particularly after I refused her application for a continuation, the petitioner indicated that English was not her first language and that she wished to have an opportunity to have solicitors acting on her behalf. I should observe that on occasions in the past the petitioner has appeared for herself and has appeared to have no difficulty in making herself understood to the court or in presenting such arguments as she wished to present. She did not appear to have any difficulty in presenting her arguments to me which were perfectly clear and it appeared to me that this was simply another effort to have the case delayed further.

[11] In support of the motion for dismissal counsel submitted that, for the petition to be relevant, the petitioner had to aver grounds on which the sequestration should be reduced or otherwise explain grounds why the respondent was not entitled to dispose of the estate for behoof of creditors. The pleadings in the present petition do neither. There is no attack on the original decree for debt. The sequestration proceeded on an ex facie valid charge which is unchallenged not only in this process but in any process. There is no specification of the basis on which the true sum of the debt is said to have been below the sum of £1,500. The alleged deficiencies in service are not specified, and in any event would alone be insufficient grounds for reduction. The fact of the payment of £1,800 after the fact of sequestration was irrelevant. The pleadings in the principal action are hopelessly irrelevant. In all the circumstances the petition is irrelevant and should be dismissed.

[12] I agree with the submissions of counsel for the respondent that the pleadings in the petition do not adequately specify grounds for reduction and that the petition is not relevant. No assistance can be gained from the pleadings in the principal action which are equally irrelevant. I see no basis for allowing this petition, 9 years after sequestration, to continue and it will therefore be dismissed.