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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Cameron (AP) v Gibson & Anor [2005] ScotCS CSIH_83 (24 November 2005)
URL: http://www.bailii.org/scot/cases/ScotCS/2005/CSIH_83.html
Cite as: [2005] ScotCS CSIH_83, 2006 SCLR 637, [2005] CSIH 83

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Cameron (AP) v Gibson & Anor [2005] ScotCS CSIH_83 (24 November 2005)

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

Lord President

Lord Kingarth

Lord Carloway

 

 

 

 

 

[2005CSIH83]

A1952/02

OPINION OF THE COURT

delivered by LORD KINGARTH

in the cause

SHEILA CAMERON (A.P.) as Executrix Nominate of the late ALEXANDER CAMERON formerly known as ALEXANDER CAMERON MacINTYRE

Pursuer and Reclaimer;

against

IAN MacINTYRE GIBSON and ANOTHER

Defenders and Respondents:

_______

 

Act: J.M. Scott; Anderson Strathern (Pursuer and Reclaimer)

Alt: Wise, Q.C.; Morton Fraser (Defenders and Respondents)

24 November 2005

 [1]      On 23 December 1950 Mary Ferris or Cameron presented a petition to the Sheriff Court at Fort William seeking authority to adopt Alexander Cameron, now deceased ("the deceased"). On 26 February 1951 the sheriff granted authority to Mrs Cameron to adopt the deceased and made an adoption order in respect of him. The deceased raised the present action for production and reduction of that decree, and on his death the court, on 12 May 2005, allowed his executrix nominate to be sisted in his room and place.

[2]      In support of reduction averments are made to the following effect. The deceased was born on 26 February 1930, and was named Alexander Cameron MacIntyre. His mother was Margaret Finlayson MacIntyre. The deceased was brought up in the household of Donald and Mary Cameron at 76 Camaghael, Fort William. In September 1950 he moved to Slough, Berkshire where he thereafter resided. From November 1950 he was known as Alexander Cameron. On 23 December 1950 Mary Cameron presented the adoption petition referred to above to the Sheriff Court at Fort William. Decree of adoption was granted on 26 February 1951, which was the deceased's 21st birthday. He, however, was unaware that he had been adopted until he contacted solicitors who acted on behalf of his brother, the late Dugald MacIntyre. He was then advised that he had been adopted and that he had no claim in relation to Dugald MacIntyre's estate.

[3]      Reduction of the adoption order is sought on two grounds. First, on 26 February 1951 the pursuer attained 21 years of age. Section 1(1) of the Adoption Act 1950, the statute in force at the time, permitted the court to make an order authorising the adoption of "an infant". Section 45 of the Act defined "infant" as "a person under 21 years of age". The deceased was therefore not under 21 years of age when the adoption order was made. On that basis it is claimed that the order was incompetently granted. Secondly, a form of consent bearing to have been signed by the deceased, signing "A Cameron MacIntyre", was produced in the adoption proceedings in Fort William Sheriff Court. The form bears to have been signed on 18 December 1950, in Fort William. It is averred that the form of consent was not signed by the deceased, and that on the date stated in the form he was living in Slough. In support of the averments that the form of consent was not signed by the deceased, reference is made to the opinion of a consultant forensic document examiner. Paragraph 12 of the petition in Fort William Sheriff Court contained a statement that consent had been obtained from the deceased. On 15 January 1951 the Sheriff Substitute dispensed with intimation on the Walls of Court and made no order for intimation on the deceased. In these circumstances it is averred that the petition proceeded on the false basis that the deceased had consented to the making of the adoption order.

[4]      The defenders tabled pleas-in-law to the competency of the remedy sought and to the relevancy of the pursuer's averments, and the matter came before the Lord Ordinary on procedure roll. The Lord Ordinary, by interlocutor of 2 December 2003, (repeated when the present pursuer was sisted in room and place of the deceased on 12 May 2005) allowed the case to proceed to proof before answer on the second of the grounds advanced, namely the alleged defect in consent. Although he repelled the defenders' plea to the competency of the action in relation to the first basis on which it is brought (albeit per incuriam the interlocutor indicated that he had sustained that plea), he held irrelevant the pursuer's averments in that connection (made at Article VI), and excluded those averments from probation. It is in relation to that part of his decision that this reclaiming motion has been taken.

[5]      Section 1 of the Adoption Act 1950 - headed "Power to make adoption orders" - provided (so far as relevant):

"1.-(1) Subject to the provisions of this Act, the court may, upon an application made in the prescribed manner by a person domiciled in England or Scotland, make an order (in this Act referred to as an adoption order) authorising the applicant to adopt an infant.

....".

It was provided in the interpretation section (section 45) that "'infant' means a person under twenty-one years of age, but not does include a person who is or has been married". It was further provided by virtue of section 9 that an application for adoption could be made in Scotland to the Court of Session or to the sheriff court or juvenile Court within whose jurisdiction the applicant or the infant resided at the date of the application.

[6]      In the course of his opinion the Lord Ordinary expressed the view that reduction of an adoption order was competent, but the remedy would only be available in limited circumstances. The most obvious of these would be where it could be shown that fraud had been perpetrated on the court. Apart from the case of fraud, however, he expressed the view (at para.10) that there were strong policy reasons for treating adoption orders as generally sacrosanct. Such orders affected the status of the person adopted, in very fundamental respects. Even under the Adoption Act 1950, whose consequences were more limited than those provided for in more modern legislation, the entire responsibility for a child's custody, maintenance and education was removed from the natural parents and conferred on the adoptive parents. The Lord Ordinary records that the nature of an Adoption Order was considered in J & J v C's Tutor 1948 S.C. 636, in the context of the original adoption legislation, the Adoption of Children (Scotland) Act 1930, and that Lord President Cooper began his analysis of the law by stating that the Act of 1930 "made a serious invasion upon the common law by introducing a novel institution which cannot easily be fitted into its setting". Nevertheless, apart from fraud, the Lord Ordinary recognised (at para.11) that certain situations would exist in which reduction could be an available remedy. He explained inter alia:

"Reduction would no doubt be available where it was not competent for the court in question to make any adoption order, with the result that the purported order was beyond the court's jurisdiction; in such a case the category of order is beyond the powers of the relevant court, and the order must therefore be a legal nullity."

He explained that when he used the word "jurisdiction" in that context he was referring to the "ability of the level of court in question to make adoption orders". He expressed the view that it might be possible for an adoption order to be reduced on the ground that it was obtained in breach of the principles of natural justice, for example, where the child's natural mother did not receive service of the adoption petition. In addition he thought it was possible that an error as to the identity of the child adopted could be a valid ground of reduction. It was his opinion, nevertheless, that apart from such, and possibly other, exceptional cases, reduction of an adoption order was not competent. He said, inter alia,

"In particular, it should not be possible to reduce an adoption order merely because it was granted on the basis of an error of fact or law. J & J v C's Tutors is authority for that proposition insofar as it relates to errors of fact."

He expressed the view that the same approach must be taken to errors of law in view of the policy considerations discussed. He further indicated his view that an adoption order could not be reduced on account of procedural error that did not amount to a denial of natural justice.

[7]      At paragraph 13 of his opinion, the Lord Ordinary expressed his views in relation to the present case. He said:

"[13] In the present case, the first ground on which the pursuer seeks reduction of the adoption order is that, at the time when it was granted, he was twenty-one years old. Section 1(1) of the Adoption Act 1950 permits an adoption order to be made in respect of an "infant", an expression which is defined in section 45 of the Act as a person under twenty-one years of age. The adoption order was in fact granted on the pursuer's twenty-first birthday, but it appears from his birth certificate, which is lodged in process, that he was born at 2 am; consequently, in accordance with the law then in force, he would have attained twenty-one at 2 am on the date of the adoption order, which is obviously before the order would have been granted. In those circumstances the defect in the granting of the order amounts in my opinion to no more than an error of either fact or law. Either the Honorary Sheriff Substitute who granted the order failed to realise that the pursuer had attained twenty-one, which is an error of fact, or he realised that the pursuer had attained twenty-one but did not appreciate the significance of that fact for his power to grant an adoption order, which is an error of law. In either event, I am of opinion that reduction is not competent. Counsel submitted that the pursuer's age was a defect of such a fundamental nature that it rendered the order void, with the consequence that reduction ought to be granted. I do not agree. It is no doubt a precondition of an adoption order that the person adopted is under twenty-one, but I cannot see any basis for distinguishing the requirement of age from any other precondition for the making of an order, or indeed any other issue of fact that forms a material consideration in the making of the order. An error as to such a precondition does not affect the competency of the order, in the sense that the Sheriff Substitute had power to make orders of the category in question, namely adoption orders. Nor in this respect is there any suggestion of fraud or any other defect that might take the case outwith the policy considerations discussed in paragraph [10] above."

Submissions for the pursuer and reclaimer
[8] The Lord Ordinary's interlocutor should be recalled, and decree de plano granted; which failing, the averments made on behalf of the pursuer at Article VI should be remitted to proof before answer. The order granted on 26 February 1951 was not an adoption order within the meaning of section 1 of the Adoption Act 1950. The only order that could be made was an order authorising the applicant to adopt an infant as defined, being a person under 21 years of age. It was accepted that at the relevant time the deceased was not under 21 years of age. The adoption order was no more an adoption order than one made, for example, in respect of a fictitious character or an animal or a person aged 75. The court did not have the power to grant an adoption order save in respect of an "infant". This could properly be described as an order beyond the court's jurisdiction. Reference was made to Wade and Forsyth, Administrative Law 9th Edition, at p.251. The Honorary Sheriff Substitute could not give himself the power to grant an adoption order which he did not have by any wrong decision on a question of fact or law. This was as much true in respect of the decisions of courts as it was in respect of decisions of administrative bodies or inferior tribunals. Reference was made to Wade and Forsyth, pps.252-3 and 255, R v Fulham, Hammersmith & Kensington Rent Tribunal (ex parte Zerek) 1951 2 K.B. 1 at p.6, Anisminic Ltd v Foreign Compensation Commission 1969 2 AC 147 at pps.171, 174, 194-5 and 207-208 and Watt v Lord Advocate 1979 S.C. 120 at pps.128 to 131 and p.133. The Honorary Sheriff Substitute made an error in respect of his power to act, as opposed to making a mistake of fact or law in relation to the making of an order which he competently could make. His decision was ultra vires, and a nullity.

[9]      In these circumstances the pursuer and appellant was entitled to decree of reduction ex debito justitiae. Inherent nullity was recognised as a ground of reduction of any decree. Reference was made to Maclaren, Court of Session Practice at p.695, Munro v Rose (1855) 18 D. 292 at p.295, Corbridge v Somerville 1913 S.C. 858, McMillan v Free Church (1861) 23 D. 1314 and Bain v Hugh L S McConnell Ltd 1991 S.L.T. 691. There was nothing inconsistent with this approach in Philp v Reid 1927 S.C. 224 or Adair v Colville & Sons 1926 S.C. (H.L.) 51. A distinction was drawn in England between cases where a court lacked jurisdiction because it had no power to grant the order in question and cases where the exercise of a jurisdiction enjoyed by the court was flawed. In the former case, the decision fell to be regarded as void. Reference was made to Manchanda v Manchanda [1995] 2 F.L.R. 592. In Re F. (Infants) (Adoption Order: Validity) [1977] Fam.L.R. 165, a case relating to an adoption order, it was accepted that an order that was "bad on its face" would have been regarded as void. In the present case the adoption order, which referred to the birth date of the deceased, could be said to be an order bad on its face. Even if the court was not prepared to grant decree of reduction. at this stage, there was nothing in the authorities which suggested that the pursuer's averments in Article VI could not be said to refer to matters relevant for the exercise of the court's discretion and at least a proof before answer in respect of these averments (together with the averments in respect of fraud) should be allowed.

Submissions on behalf of the defenders and respondents
[10] The Lord Ordinary's interlocutor should be adhered to, which failing proof before answer should be allowed in relation to the pursuer's averments to the effect that the deceased was over 21 when the order was made. It was accepted that section 1 of the Adoption Act 1950 referred to the making of orders in respect of persons who were under 21 years at the time the order was made, whatever may have been the position at the date of application, and that in this case the deceased was, at the time the order was made, over 21, it being apparent from his birth certificate, and the law then in force, that he became 21 at 2.00am on the date in question. Reference was made to Fraser on Parent & Child at p.200. Nevertheless adoption orders were made in proceedings which could be regarded as sui generis. Reference was made to J & J v C's Tutor. They were intended to be permanent and generally irrevocable. If they were generally open to reduction, this would be contrary to public policy. J & J v C's Tutor was authority for the proposition that it was not possible to reduce an adoption order on the basis of mere error of fact. Reference was also made to Re B. (Adoption: Jurisdiction to set aside) [1995] 2 FLR 1. It was further clear from J & J v C's Tutor that if such an order could be reduced, the court would need to be satisfied of the more exacting tests for reducing a decree in foro than apply in the case of reduction on a decree in absence. There would need to be exceptional circumstances, such as to indicate a miscarriage of justice. Reference was made to Adair v Colville & Sons, Philp v Reid and Bain v Hugh L S McConnell Ltd.

[11]      This could not be said in the present case. The Lord Ordinary was right to categorise what had happened as an error of law or fact, the precise nature of which was not known, in an action competently brought in respect of an order of a type which the Honorary Sheriff Substitute could competently have made. It could not be said that the order was a nullity or made ultra vires. It was no different from the order made when (unknown to the court) the applicants were not married, contrary to the statutory requirement, in In Re F. (Infants) (Adoption Order: Validity). For similar reasons the Extra Division in Masroor Ahmed Syed, otherwise named as Syed Masroor Ahmed v Samrana Ahmed (13 October 2005, unreported) rightly decided that a decree of divorce pronounced in Scotland in ignorance of earlier divorce proceedings in Pakistan, which the court would have recognised, could not be said to have been a nullity. It was accepted that it was more difficult to say that the court could have power to make orders of the kind figured by counsel for the reclaimer (such as in respect of a person 75 years of age). But at least in this case the deceased was under 21 at the date of the application. Even in the cases figured by counsel for the reclaimer it could not be said that orders made would be fundamentally null.

[12]      Even if the age of the deceased at the time of the order could be said to be a possible basis for reduction, there should be a proof before answer. The court always has a discretion to refuse to pronounce decree of reduction of a court decree. This was true even if the correct analysis was that the order was pronounced ultra vires, and a legal nullity. Reference was made to Bain v Hugh L S McConnell Ltd.

Discussion
[13] It was not disputed before us (or before the Lord Ordinary) that as a matter of proper construction the power given to the court by section 1(1) of the Adoption Act 1950 was to make an order authorising the adoption of a person who was an infant, as defined, at the time the order was made. Nor was it disputed before us (or before the Lord Ordinary) that when the order was made in this case the deceased was not under 21 and was therefore not an infant within the meaning of section 1. Nor was it seriously disputed that the order must have been granted as a result of some error, the precise nature of which was unknown. The Lord Ordinary's analysis in that respect was not challenged, although it occurs to us that, in addition, another possibility is that the relevant question was, for whatever reason, not considered at all at the material time.

[14]      The real issue focused in the debate before us, is how to categorise what took place; in particular whether it could be said that the order made was one which the Honorary Sheriff Substitute had no power to make, and thus that it was a nullity, or on the other hand whether, as found by the Lord Ordinary, what took place amounted to no more than an error of fact or law in the making of an order which it was otherwise competent to grant. We have come to the view that the former approach is correct.

[15]      Sub-section (1) of section 1 (headed "Power to make Adoption Orders") gave the court power - subject to the provisions of the Act - to make an adoption order, effectively defined as one authorising the applicant to adopt an infant. No power was given to any court in any circumstances to make an order authorising any applicant to adopt someone who was not an infant. In these circumstances, while in some cases it may be difficult to decide whether the particular decision which has been made can properly be described as one which the court did not have power or jurisdiction to make, and whatever may be said about other prescribed conditions (procedural or otherwise) for making an adoption order, or about other matters of fact of which the court would require to be satisfied, it is difficult, we consider, to resist the conclusion that any order purportedly granted in respect of a person over 21 could not be said to be an adoption order which the court had power to make. It would instead be an order ultra vires, made outwith the court's jurisdiction, using that word in its wider sense. As is said in Wade and Forsyth Administrative Law at p.251

"In this area 'jurisdiction' is a hard-worked word. Commonly it is used in its broader sense, meaning simply 'power'. In some contexts it will bear the narrower sense of 'power to decide' or 'power to determine', but there will be no technical difference. In fact, except in the special case of error on the face of the record, the principle here at work is basically that of ultra vires, which is synonymous with 'outside jurisdiction' or 'in excess of power'".

 [16]      A decision thus made ultra vires would, in our view, be a legal nullity. We note that in Bain v Hugh L S McConnell Ltd (where an action of damages in the Sheriff Court was dismissed by the sheriff ex proprio motu), it was said at page 695:

"In our opinion that is just the sort of case which the pursuer in the present case is seeking to make. He has averred that in pronouncing the interlocutor of 9 October 1985 which is sought to be reduced, the sheriff acted ultra vires of his powers. Those averments of the pursuer are admitted by the defenders. Accordingly by admission of the parties this is a case where the pronouncing by the sheriff of the interlocutor in question was ultra vires; it must therefore have constituted a miscarriage of justice which rendered the whole proceedings fundamentally null."

When pressed with the example of an order purporting to authorise adoption of a person aged 75, counsel for the respondents appeared to accept that it would be difficult to describe such an order as one which the court had power to make. The position at the date of the original application to the court could not, in our view, in principle, affect the question. Nor is it, in principle, affected by the fact, however unfortunate, that in this case not only was the deceased under 21 at the date of the application, but the order could have been made competently on the day before.

[17]      Equally, the fact that the order may have been made by reason of a mistake in fact or law cannot affect the conclusion that the order was one made ultra vires. Just as, when power is given by Parliament to administrative bodies or tribunals to act in limited circumstances, it is well-established that such bodies cannot, by their own mistake of fact or law in relation to matters circumscribing the limits of their powers, give themselves powers which they do not have (see e.g. Wade and Forsyth Administrative Law pps.252 and 253, Anisminic Ltd v Foreign Compensation Commission and Watt v Lord Advocate), so the same is true in respect of courts. We note, for example, that it is said in Wade and Forsyth, at p.252, that "a classic statement" comes from Bunbury v Fuller (1853) 9 Exchequer 111, in which Coleridge J said:

"Now it is a general rule, that no Court of limited jurisdiction can give itself jurisdiction by a wrong decision on a point collateral to the merits of the case upon which the limit to its jurisdiction depends; and however its decision may be final on all particulars, making up together that subject-matter which, if true is within its jurisdiction, and, however necessary in many cases it may be for it to make a preliminary enquiry, whether some collateral matter be or be not within the limits, yet, upon this preliminary question, its decision must always be open to inquiry in the superior Court."

 [18]      In these circumstances the reasoning of the Lord Ordinary at paragraph 13 of his decision cannot, we think, be supported. It seems clear that he took the view that the error in question in this case could have been no more than an error which the Honorary Sheriff Substitute had power to make. That error, however, went to a matter which circumscribed the limits of his (or any court's) power. The Lord Ordinary accepts that one thing the learned Sheriff Substitute might have done was to realise that the pursuer had attained 21 but "not appreciate the significance of that fact for his power to grant an adoption order". He does not, however, go on to say what the significance of that fact for his power would have been. In our view it is clear that an error of that type would have led him to make an order which he had no power to make. As the Lord Ordinary himself accepted, at an earlier part of his opinion, an order beyond the powers of the relevant court "must therefore be a legal nullity", albeit he was then speaking of an order beyond the court's jurisdiction in the narrow sense. It is, in our view, also wrong to describe the question of the age of the person to be adopted simply as a pre-condition. Rather, having regard to sub-section (1), it could be said to be an integral part of the definition of the only order which could be made. It is, in our view, equally wrong to suggest that the error which must have been made could not be distinguished from "any other issue of fact that forms a material consideration in the making of the order". In our view it would plainly be different if the sheriff had, for example, erred, in an otherwise competent application, in respect of his assessment of the suitability of the applicants or in any other matter in relation to the merits of the application. Whereas the Lord Ordinary correctly observed that the sheriff had power to make orders "of the category in question", that category was defined by reference to the only persons who could be subject to such orders.

[19]      It is true that in In Re F. (Infants) (Adoption Order: Validity) the Court of Appeal did not regard an adoption order made in favour of applicants who were not "spouses" in terms of section 1(2) of the Adoption Act 1958 as void (at least in circumstances where that was not clear on the face of the order), but that case can, we think, be distinguished on the basis that the relevant sub-section could perhaps more readily have been seen only as a condition for the making the order rather than as one defining the order itself. Moreover, it could not be said that the court which made the order must have made an error of fact or law on the basis of the information before it. Further, in the present case it is at least arguable that the order, which in terms refers to the deceased's date of birth, was bad on the face of it. In the same way, although an Extra Division has recently held in Ahmed v Ahmed that a decree of divorce pronounced in Scotland in ignorance of earlier divorce proceedings in Pakistan, which the Court would have recognised, could not be said to have been a nullity, the subject-matter was different and it can, in a number of respects, be distinguished. It is, inter alia, apparent that at the time the decree was pronounced the court would have had to consider, in any event, whether, in the exercise of its discretion under section 51 of the Family Law Act 1986, to refuse to recognise the Pakistani proceedings. It was not suggested at all that, on the basis of the information before the original court, it must have made an error of fact or law. In these circumstances we do not think it necessary to say anything more about the reasoning in these cases.

[20]      If, therefore, it is correct to categorise, the order in this case as one made ultra vires (and thus a nullity) there is no dispute that the Lord Ordinary's interlocutor could not stand insofar as he held the pursuer's pleadings in respect of this matter to be irrelevant. The question remains as to whether the pursuer is entitled to reduction, or whether there could be said to exist a discretion in the court to refuse such a remedy.

[21]      It is well understood that the circumstances in which the remedy of reduction is available in respect of court decrees differ as between different types of decree, and that a stricter test is applied in respect of decrees in foro than in the case of decrees in absence. (see, for example, Robertson's Executor v Robertson 1995 S.C. 23.) As was said by Lord President Cooper in J & J v C's Tutor, an adoption order is neither "a decree in foro or a decree in absence... It stands in a class apart." In deciding that it could not, like a decree in absence, be reviewed on its merits at any stage within twenty years, and could not be reduced because the applicants claimed they had adopted the child in question under essential error induced by innocent misrepresentations made by those acting for the natural mother, the Lord President did not seek to decide any wider question; indeed, as he put it, he deliberately abstained from generalising more widely than was necessary for the decision of the case. In the present case we were informed by counsel that it was the first of its kind to come before the courts, at least in Scotland. The matter is thus on one view at large. There are, of course, as Lord President Cooper rehearsed and the Lord Ordinary has observed, strong policy reasons for treating adoption orders competently made as generally sacrosanct and not subject to revocation or reduction save in exceptional circumstances. Against that, however, as Lord President Cooper himself observed, in allowing for adoption orders, Parliament "made a serious invasion upon the common law by introducing a novel institution" which affected status in a fundamental manner. This, it seems to us, increases rather than diminishes the importance of ensuring that the power to effect the "new statutory institution" is kept within the fundamental limits set. The Court of Session has always had power in the exercise of its supervisory jurisdiction to keep inferior courts within the limits of their powers. (see e.g. Walker on Civil Remedies, p.184 and cases there cited.) In these circumstances, we consider that the pursuer is entitled to the remedy of reduction. We note that the Lord Ordinary considered, it appears, that such a remedy would be open if the court made an order beyond its jurisdiction (in the narrower sense). It is difficult to see why a decree which, ex hypothesi, no court had power to grant should be afforded more protection.

[22]      We would not be inclined to reach a different conclusion if the tests applicable for reduction are those which apply to decrees in foro. As to that, we are not persuaded that Lord President Cooper could be taken in J & J v C's Tutor as saying that they are, and there are reasons for thinking that a number of material considerations relating to decrees in foro are different. Factors which can play an important part in the latter (at least where reduction is sought by one of the parties) include the availability of rights of appeal or failures to use those rights, (see e.g. Adair v Colville & Sons) or failures to take particular pleas (for example as to jurisdiction), which could have been taken at an earlier stage (see, e.g. Maclaren, Court of Session Practice at p.696) or the existence of possible personal bar, for example by homologation (see, Philp v Reid at p.234). These are factors which peculiarly arise from the nature of decrees in foro, and none are said to apply in the present case. Be that as it may, it seems clear in relation to decrees in foro that the court will not grant reduction save in exceptional circumstances which could be said to have led to a miscarriage of justice (see, for example, Bain v Hugh L S McConnell Ltd). There is nothing, however, in the authorities to which we were referred, including Adair v Colville & Sons (which was particularly founded upon) to suggest that if a decree was pronounced ultra vires, and thus a nullity, that that would not, of itself, amount to special circumstances of the type referred to. The suggestion in Philp v Reid (at p.229) appears to be that it would. More importantly, it seems clear that the inferior court's ultra vires decision was so regarded in Bain v Hugh L S McConnell Ltd, although in that case there were other matters which provided additional reasons for the court's decision.

[23]      In all the circumstances we shall recall the interlocutor of the Lord Ordinary, sustain the pursuer's first plea-in-law and pronounce decree de plano.

[24]      We would only add that if, contrary to the above, the order in question could not be said to have been granted ultra vires, nothing in the authorities to which we were referred suggest that an error such as must have occurred, in relation to what, on any view, was an important matter, could not relevantly be averred as a factor to be considered in a claim for reduction. Indeed, the approach of the Court of Appeal in Re F. (Infants) (Adoption Order: Validity) could be taken as pointing to the contrary conclusion. In such circumstances we would have been inclined, in any event, to recall the Lord Ordinary's interlocutor to the extent of allowing a proof before answer of the pursuer's averments at Article VI, so that the averments on this matter could be considered along with the averments in relation to the allegation of fraud. We observe, however, as did counsel for the pursuer (although she did not make more of it at this stage), that there are at present no averments made by the respondents of facts which the court should take into account in the exercise of any equitable jurisdiction to refuse reduction.

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