Scottish Human Rights Law Group » Insolvency and Personal Bankruptcy

MacLeod’s Trustee v MacLeod

Lee Jones — Wed, 29 Apr 2009 10:28:50 +0000

The Sheriff upheld the contention of the permanent trustee on the sequestrated estate of a debtor in an action against his wife for the division and sale of heritable subjects of which the debtor and his wife were joint proprietors, and for warrant to have the debtor, his wife and family (a son, a daughter and her partner and their 20 month old child) ejected from the property. The sheriff held that the public interest in completing sequestrations within a reasonable period justified the interference with their Convention rights to respect for their home (Article 8 ) and property (Article 1 Protocol 1) and that the remedy of division and sale was in the circumstances compliant with the Convention.

Interference with moveable property – arrestment on the dependence

Lee Jones — Mon, 27 Apr 2009 12:59:28 +0000

The other pre-emptive and protective remedy commonly obtained as a matter of course when raising a court action in Scotland was a warrant to arrest, on the dependence of the action, any funds belonging to the defenders which were in the hands of third parties. [1] The authority for diligence was granted by a clerical act of a clerk of session but since diligence on the dependence was available as of right in cases where there were pecuniary claims, in theory a pursuer with a weak, exaggerated or unfounded claim could alter the balance of power by tying up the defender’s assets and damages for wrongful or unjustified use were available only in exceptional cases. In Advocate General for Scotland v Taylor [2] the Inner House held that the availability of diligence as of right, irrespective of whether the pursuer’s claim was well founded in fact or in law and without any judicial assessment of the claim’s validity did not contravene Article 6 (because the civil rights and obligations of an individual were not determined by the grant of the warrant itself) and so a fair and public hearing by an independent and impartial tribunal established by law was not required. However having regard to Article 1 Protocol 1 in order to justify the interference with property rights the court held that the grant of a warrant for diligence on the dependence should in essence be a judicial act where a judge himself had to consider the material placed before him before deciding to grant warrant for diligence or refuse it. The court observed that the applicant for a warrant or letters of inhibition need only establish a prima facie case on the merits of the action and that the diligence sought was proportionate to the claim.

[1] In Scottish Power Generation Limited v. British Energy Generation (UK) Limited, 2002 SC 517, IH the provisions of Section 47(2) of the Court of Session Act 1988 were sought to be used. in the context of on-going contractual relationship between the parties, as an alternative means of providing proper security for both parties in respect of litigated claims.

[2] Advocate General for Scotland v Taylor, 2004 SC 339

Inhibition on heritable property

Lee Jones — Mon, 27 Apr 2009 12:47:15 +0000

Classically at common law in Scotland, pursuers’ interests in the course of litigation may be protected by the taking out of an inhibition on the dependence which prevents the defender from alienating any heritable property in Scotland. The remedy was available as of right once the Summons had passed the signet and needed no further court intervention although the court retained a jurisdiction to ensure that these remedies were not used oppressively. The defender could come to court to make an application seeking discharge or variation of such orders on the grounds that they were being used nimiously and oppressively. The practice of the court was often to discharge the order on the production of adequate alternative security by the defender, whether by his consigning sums with the court or producing a bond of caution. In Karl Construction Ltd. v. Palisade Properties plc [1] Lord Drummond Young held that the practice in the Court Session of automatically granting on the signetting of a summon warrants to allow for inhibition on the dependence of the action was not compatible with the Convention requirement of respect for property rights as set out in Article 1 Protocol 1. Compatibility with the “control of use” requirements of Article 1 Protocol 1 was said to require that four criteria be met: (i) the pursuer had to establish a prima facie case on the merits; the pursuer had to establish a specific need for the interim remedy; [2] (iii) the remedy could only be granted after a judicial hearing; and (iv) the defender should be entitled to damages if the remedy had been unjustifiable obtained against him.

In Amalgamated Roofing & Building Co v Wilkie [3] it was held that the validity of an inhibition on heritable property which was granted and duly recorded in the Register of Inhibitions and Adjudications in the course September 2000 was not called into question either by the decision in Karl Construction or the coming into force of the Human Rights Act 1998 Act. The decision in Karl Construction was said to apply prospectively only; it did not invalidate any prior regularly obtained inhibition on the dependence which remained valid until either formally recalled or reduced.

[1] Karl Construction Ltd. v. Palisade Properties plc, 2002 SC 270

[2] See Barry D. Trentham Ltd. v. Lawfield Investments Ltd., 2002 SLT 1094, OH decision of Lord Drummond Young for an example of the pursuer’s managing to establish a specific need for inhibition on the dependence against the defender.

[3] Amalgamated Roofing & Building Co v Wilkie, 2004 SLT 509

MacLeod’s Trustee v MacLeod

Jennifer Dunlop — Fri, 30 Jan 2009 09:47:35 +0000

The Sheriff upheld the contention of the permanent trustee on the sequestrated estate of a debtor in an action against his wife for the division and sale of heritable subjects of which the debtor and his wife were joint proprietors, and for warrant to have the debtor, his wife and family (a son, a daughter and her partner and their 20 month old child) ejected from the property. The sheriff held that the public interest in completing sequestrations within a reasonable period justified the interference with their Convention rights to respect for their home (Article and property (Article 1 Protocol 1) and that the remedy of division and sale was in the circumstances compliant with the Convention.

Full report available at: 2007 Hous. L.R. 34

Scottish Human Rights Law Group » Insolvency and Personal Bankruptcy

MacLeod’s Trustee v MacLeod

Interference with moveable property – arrestment on the dependence

Inhibition on heritable property

MacLeod’s Trustee v MacLeod

Categories