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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McGonigle v. Murray [2005] ScotCS CSOH_122 (13 September 2005)
URL: http://www.bailii.org/scot/cases/ScotCS/2005/CSOH_122.html
Cite as: [2005] CSOH 122, [2005] ScotCS CSOH_122

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McGonigle v. Murray [2005] ScotCS CSOH_122 (13 September 2005)

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 122

 

 

 

 

 

 

 

 

 

 

NOTE BY LADY PATON

in the cause

GEORGE McGONIGLE (AP)

Pursuer and Respondent;

against

PAUL GRAHAM MURRAY

Defender and Reclaimer:

 

________________

 

Pursuer: Kelly; Drummond Miller, W.S.

Defender: Absent; A & W M Urquhart

13 September 2005

My Lords,

[1]      The pursuer was born on 10 October 1962. As is averred at page 5B-C of the Record, he contracted meningitis at the age of six months. It is averred that:

"He is of unsound mind and is incapable of managing his affairs or of giving instruction for their management. In these circumstances it is necessary for a curator ad litem to be appointed in respect of the pursuer. It is appropriate to grant said curator ad litem all necessary powers to conduct the litigation on behalf of the pursuer."

 [2]      The case came before me on 21 April 2004. An interlocutor of that date records that Mr. Kelly, Advocate, appeared in court. The interlocutor is in the following terms:

"The Lord Ordinary, having heard counsel, allows the instance of the summons to be amended as proposed at the bar; appoints Kenneth M. Christine, Advocate, Edinburgh to be curator ad litem to the pursuer, George McGonigle."

 [3]      A subsequent interlocutor records that I administered the oath de fideli administratione officii to Mr. Christine on 26 April 2004.

[4]      Over a year later, on 1 June 2005, I received a request from the clerks to the Inner House to provide a Note in support of the interlocutor of 21 April 2004. A search was made for any manuscript notes taken at the time, but unfortunately none could be traced. What follows is therefore based on recollection and a brief discussion with the counsel concerned (Mr. Kelly).

[5]      As I recall, I took the view that there was information before the court which justified the appointment of a curator ad litem. That information came from the pleadings and what was said by counsel in court. I did not consider that I had to rule upon whether the pursuer could competently move a motion. Rather I took the view that the court had information indicating that it would be in the interests of a party to provide protection for that party. Accordingly I appointed a curator as set out in the interlocutor dated 21 April 2004.

[6]      I understand that a different view has been expressed in the Outer House, notably by Temporary Judge R. F. Macdonald, Q.C., to the effect that a pursuer who is not of sound mind is unable competently to instruct a motion for the appointment of a curator ad litem. That view is reflected in the Grounds of Appeal. I would make the following observations:

[7]      First, the question was not fully argued in an adversarial manner in the Outer House on 21 April 2004. It might be thought appropriate to have the matter fully debated by counsel for both pursuer and defender in the Outer House, before being considered by the Inner House.

[8]      Secondly, even without full argument, it is my view that a court which has the necessary information about the incapacity of a party may, ex proprio motu, without the need for any motion (competent or otherwise), appoint a curator ad litem for the assistance and protection of that party.

[9]      Thirdly, the alternative approach advocated in the Grounds of Appeal, namely, the appointment of a guardian or curator prior to the raising of the action, might involve more time and expense than the procedure adopted in the present case.

 

 

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