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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> MacRobert v Cahill [2001] ScotCS 181 (5 July 2001) URL: http://www.bailii.org/scot/cases/ScotCS/2001/181.html Cite as: [2001] ScotCS 181

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[1] The defender and appellant appeared before the court at a summar roll hearing on 9 February 2001. In the course of the hearing the appellant appeared to accept that his case as averred on record was defective. He accordingly sought and obtained an adjournment in order to consider his position and, in particular, to consider whether there was warrant for amending his pleadings and his grounds of appeal. As the court understood the matter at that time, the purpose of any such amendment was to be directed to introducing averments relating a specific verbal agreement entered into after the death of the appellant's father between the appellant, the other beneficiaries of his father's will and his father's executor to the effect that the appellant would be entitled to the house which he occupied at his father's death in satisfaction of the bequest to him in his father's will of the residue of the estate. On 23 February 2001 the appeal again came before the court. At this diet the appellant produced a voluminous document as a proposed minute of amendment together with further grounds of appeal and a proposed inventory of productions. The court then intimated that the document together with the proposed grounds of appeal appeared to go far beyond the limits of amendment as originally envisaged when the appeal was adjourned. The appeal was further continued to 13 March 2001 when a revised document seven pages long and entitled minute of amendment was presented by the appellant, together with revised further grounds of appeal, and a proposed inventory of some 54 productions for lodging. The appellant's motion to receive the proposed minute of amendment (No. 34 of process), to allow the existing grounds of appeal to be further amended in terms of the further grounds of appeal (No. 35 of process) and the inventory of productions (No. 33 of process) to be lodged, was continued to enable the pursuer and respondent to consider the documents then presented to the court. The motion came before the court again on 20 March 2001 but due to lack of court time could not then be heard. It was further continued to 14 June 2001 when this court heard full submissions on the motion.

[2] For the pursuer and respondent Mr. Thompson reminded the court of the lengthy history of the action which was raised in the sheriff court in 1994 and concerns the executry estate of the appellant's father who died in 1986 on which the respondent was appointed as judicial factor in 1989. The appellant had been legally represented in the earlier stages of the action before both the sheriff and on appeal before the sheriff principal. Before the sheriff the record had been the subject of amendment prior to debate in late 1997 and early 1998. Following upon the sheriff principal's judgment, the appellant had appealed to this court on 27 April 1999. Grounds of appeal had been prepared and lodged on his behalf by his legal representatives. These grounds of appeal had subsequently been amended by the appellant on 13 February 2000 shortly before a summar roll hearing on 25 February 2000. That hearing had been continued to enable an offer to settle the matter to be considered by parties. Such discussions had proved unsuccessful and intimation to that effect had been given to the court on 24 March 2000. Parties intimated to the court that they were ready to proceed with the appeal on 4 January 2001.

[3] Mr. Thompson submitted that the proposed minute of amendment went far beyond the purpose for which an adjournment had been granted to enable the appellant to consider whether to amend the pleadings when the matter was first raised at the hearing on 9 February 2001. In particular, the minute sought to introduce new cases in relation to an alleged right to occupy the house arising prior to the death of the appellant's father, one which, it was said, did not automatically terminate on his father's death and for which approval of the other beneficiaries, although obtained, was unnecessary. A further right of possession of the property by the authority of the executor was also claimed, which right was said to have arisen from a date subsequent to his father's death. Moreover, the appellant also now claimed that a right to purchase the property by authority of the executor had arisen subsequent to the last date. Apart from that, there was reference only to "the verbal agreement reached at the reading of (his father's) will", which was wholly lacking in specification and which did not introduce any relevant material to add to the averments already on record. In addition, there were sought to be introduced extensive averments which related to alleged actings on the part of the judicial factor, constituting allegations of maladministration and unreasonable actings on his part. These averments had no relevance and were not in point to the issues in the present action which was concerned with removal of the appellant from property which formed part of the executry estate. Mr. Thompson also submitted that the grounds of appeal which related to the new matters raised in the minute of amendment should not be received and that the inventory of productions should not be allowed to be lodged.

[4] Mr. Cahill accepted that the amendment came very late in the day but laid this to the fault of his legal representatives. He conceded that the respondent as judicial factor had a right to evict him but maintained that with another action directed against his sister, one of the beneficiaries, still in court, the action taken by the judicial factor in raising the present action and proceeding with it went far beyond what was reasonable. Reference was also made to articles 1 and 8.2 of the European Human Rights Convention. He had improved the property and had spent money on it.

[5] It is sufficient to say that, in our opinion, Mr. Thompson is well founded in his submission that the proposed minute of amendment seeks to introduce into the pleadings new cases which have had no place in the pleadings before now, as is plain from the terms of the judgments of both the sheriff and the sheriff principal. These cases are brought forward far too late in the day in these proceedings. If there was merit in them, there has been ample opportunity in the past to have introduced them into the pleadings. The opportunity given to the appellant to amend his pleadings was restricted to one matter. So far as that matter is concerned, no relevant or specific averments are made relating to any verbal agreement of the kind that the appellant indicated was under consideration when the adjournment of the appeal was granted. Finally, we agree with Mr. Thompson that the remainder of the averments directed to the actings of the judicial factor are not in point to the issues arising in the present action, being an action of removing.

[6] For broadly the same reasons we also consider that amendment of the present grounds of appeal should not be allowed as proposed, where they relate to the proposed minute of amendment. In other respects they merely replicate certain of the existing grounds of appeal. We do not require to deal with the matter of the lodging of productions.

[7] The appeal will therefore proceed upon the basis of the present pleadings and the present grounds of appeal as previously amended. We also agree that the appeal should be put out for early disposal in view of the time that has passed since the action was raised and the present appeal came before this court and having regard to the nature of the action.