Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2013] CSOH 177
A366/12	OPINION OF LORD TYRE in the cause ALISTAIR MOIR Pursuer; against (FIRST) CAROLYN MOIR as Executrix Nominate of the late Hugh Adam Moir and as an individual; (SECOND) COLIN HUGH MOIR as Executor Nominate of the late Hugh Adam Moir and as an individual; (THIRD) NEIL RODERICK ALLAN as Executor Nominate of the late Hugh Adam Moir; and (FOURTH) EDNA MURRAY MOIR Defenders: ________________

Pursuer: Beynon; Russel & Aitken LLP

First and Second Defenders: Upton; Simpson & Marwick

Fourth Defender: Logan; Campbell Smith LLP

14 November 2013

Introduction

[1] The late Hugh Adam Moir ("the deceased") died on 29 July 1999. He was survived by his wife, who is the fourth defender in this action, by three children, namely the first and second defenders and Kenneth George Moir, and by the pursuer, who is the son of the fourth defender and was accepted as a child of the family by the deceased. By his will dated 14 November 1990 and registered in the Books of Council and Session on 17 August 1999, the deceased appointed the first, second and third defenders as his executors and trustees. Confirmation in their favour was granted on 19 October 1999. In this action the pursuer seeks (i) reduction of a disposition granted in 2011 by the first, second and third defenders as the executors of the deceased, with the consent of the fourth defender, in favour of the first and second defenders as individuals, of certain areas of ground at Cowie, near Stonehaven, and (ii) an accounting by the executors of their intromissions with the estate of the deceased and payment to the pursuer of the balance found due to him under the deceased's will, failing which, payment of the sum of £50,000. The third defender, who is a retired solicitor, has not entered the process. The case came before me for debate on the procedure roll. The first and second defenders and the fourth defender each sought dismissal of the action.

Factual background

[2] I begin by narrating those matters which do not appear to be in dispute. For some years (the duration is uncertain) a business was carried on by a partnership whose partners were the deceased and his wife, the fourth defender. At some time the second defender was assumed as a partner. The partnership business consisted principally of salmon fishing by net, but also of washing and drying fishing nets at Cowie for a marine laboratory. Accounts of the business were made up at least for the years ending 31 January 1995, 1996 and 1997 respectively, in which the partnership was called "Mr & Mrs H A Moir" and for the period 1 February 1999 to 10 May 1999, in which the partnership was called "Mr & Mrs H A Moir & Mr C Moir".

[3] The deceased's will was in somewhat unusual terms. So far as material to the present proceedings it provided in Clauses Two and Four as follows (for easier reading I have inserted some line breaks not present in the original):

"(Two) In respect of my capital in the business of H & E Moir, Salmon Netters, or any other business in which I may have capital at the time of my death, provided my son Colin Hugh Moir as an individual is ordinarily earning his living from that business at the time of my death I DIRECT my Trustees to retain my share of the capital in the business, should it be agreed with any other partner or partners that the business is not to be sold, and to allow to my said son Colin Hugh Moir as an individual the liferent benefit comprising a half share of the revenue profits and suffering a half share of the revenue losses (or such other share of profits and losses as may be agreed between the said Colin Hugh Moir and any other partner or partners in the business), so long as he continues to work full time in the business, such bequest to be free of Inheritance Tax and the like on my death and free of legal expenses, and my other children shall not be entitled to put any pressure on my son Colin to cease this work, for accounting purposes my Trustees shall suffer their share of any capital expense or loss and have the benefit of any capital gain or profit as the same is worked out on ordinary accounting principles in proportion to their capital in the business, but ignoring Capital Allowances against Income Tax; To assist them in their administration of this capital in the business my Trustees shall have the aftermentioned Trust powers and immunities;

DECLARING however that my said son Colin may disclaim his liferent entitlement at any time, and shall do so at any time when it is decided not to continue the business, either because he no longer wishes to work full time in the business (as to which my Trustees shall be sole judges) or for other proper commercial reasons; And on the said Colin Hugh Moir ceasing to work full time in the business my Trustees shall sell the business and the net free sale proceeds after accounting for expenses and any Capital Gains Tax, or the share thereof pertaining to my Trustees, shall be divided equally among my four children the said Colin Hugh Moir as an individual, ALISTAIR REDFORD MOIR, [address given], the said Carolyn Edna Moir as an individual; and KENNETH GEORGE MOIR, [address given]; And my Trustees shall make such arrangements by way of life insurance or otherwise for any actual or contingent Inheritance Tax or tax of a like kind that may arise as a result of this termination of an interest in possession;

DECLARING that this bequest of capital shall vest at my death and that should any of the said Alistair Redford Moir, Carolyn Edna Moir, or Kenneth George Moir fail to survive me leaving issue their issue shall take their share and if any of them survive me but fail to survive the date of distribution of the proceeds, their Executors shall be entitled to their share;

Further DECLARING that should the my son Colin [sic] still have the benefit of the business at the time of my death my Trustees shall then, so far as within their power, sell the business, and the net sale proceeds shall likewise be divided equally among my four children or their respective Executors, vesting at the date of my death;

Further DECLARING that if my said son Colin Hugh Moir does not survive me, or if he survives me but is no longer (in the opinion of my Trustees) ordinarily earning his living from the said business at the time of my death, the business, or my capital therein, or the proceeds in terms of partnership law, shall form part of the residue of my estate and be disposed of as aftermentioned;

...

(Four) I DIRECT my Trustees to pay and make over the residue of my said means and estate to my said wife as an individual provided that she survives me by thirty days complete and that we are still married to each other at the time of my death;..."

In this opinion I shall refer to the four declarations in Clause Two above as the first, second, third and fourth declarations respectively.

[4] Between 1999 and 2009 the second defender received income from the marine laboratory for washing and drying nets at Cowie. Until 2011 no title to the land was completed by the executors. However, by disposition dated 5 and 10 November 2011 and recorded in the Register of Sasines on 11 November 2011, the first, second and third defenders as executors of the deceased, and with the consent and concurrence of the fourth defender, conveyed the land at Cowie to the first and second defenders equally. The disposition proceeded on the basis of a narrative that the land formed part of the residue of the deceased's estate bequeathed to the fourth defender by the will, and that the fourth defender had requested that the subjects be conveyed to the first and second defenders. No consideration is stated to have been paid.

[5] A summary cause action has been raised by the first and second defenders in Stonehaven Sheriff Court against the present pursuer for recovery of possession of the heritable property disponed in 2011. That action is being defended by the pursuer on grounds which include the contentions upon which he relies in the present proceedings. The sheriff court action has been sisted to enable the pursuer to bring this action in the Court of Session for reduction of the disposition.

The pursuer's averments

[6] The pursuer avers that as at the date of death, the deceased had substantial capital "in and from" the partnership business known originally as Mr and Mrs H A Moir. The assets of that partnership business included the heritable property disponed in 2011. The deceased had, at the date of death, a substantial capital interest in the assets of the partnership including that heritable property. It is averred that between May and December 1999 the second defender carried on business on his own behalf by salmon fishing and by washing and hanging up nets for the marine laboratory. The second defender made use of the heritable property and other assets of the partnership. The second defender is believed to have continued with that business activity until January 2009. As at the date of the deceased's death, the second defender was ordinarily earning his livelihood from the assets, capital or some of the assets or capital of the partnership business including the heritable property. In terms of Clause Two of the will, the second defender became entitled to the liferent interest provided for in that clause. Any opinion by the executors that the second defender was not ordinarily earning his living from "the said business" was "erroneous and of no effect". The second defender's continued use of the heritable property to carry on his business took place with the consent of the fourth defender. His cessation of business and consequent cessation of use of the heritable property in 2009 constituted a renunciation of the liferent. This triggered the pursuer's entitlement in terms of Clause Two of the will to a one-quarter share of the deceased's capital in the partnership. The first, second and third defenders' view that the heritable property had fallen into residue in terms of Clause Four of the will was erroneous, and the disposition by them with the consent of the fourth defender in favour of the first and second defenders as individuals was granted in breach of trust and fell to be reduced. The pursuer was entitled to an account of the executors' intromissions with the estate and to the appropriate payment.

Submissions of the parties

Argument for the first and second defenders

[7] On behalf of the first and second defenders it was submitted that the pursuer's averments were irrelevant and that the action should be dismissed. In order for the pursuer's entitlement under Clause Two of the will to arise, various conditions would have to be fulfilled:

• There must, at the time of the deceased's death, have been a business in subsistence which was being carried on by a partnership;
• The deceased must have been a partner in that business;
• The second defender must, in the opinion of the deceased's trustees, have been ordinarily earning his living from that business at the time of the deceased's death.

The pursuer did not offer to prove that any of those conditions was fulfilled. Instead, he offered to prove that at the time of the deceased's death, the second defender was ordinarily earning his livelihood from the assets, capital or some of the assets or capital of the partnership business. That was not the same thing as offering to prove that he was earning his living from the business of the partnership. Nor did the pursuer offer to prove that at the time of his death the deceased was a partner in a partnership which was carrying on a business. Instead, it appeared from the pursuer's averments that he was offering to prove that at the time of his death the deceased was entitled to a share of the capital of a partnership business which had ceased to trade in May 1999 but had not yet been wound up. Again, that was not the same thing. So far as the third of the conditions was concerned, the pursuer did not offer to prove (i) that the deceased's trustees had formed an opinion nor (ii) any relevant basis of challenge of any opinion that they may have formed that the second defender was not ordinarily earning his living from the business referred to in the will. Challenge to the trustees' judgment could only be on the basis that it was dishonest or in bad faith, or perverse, or that it trespassed beyond the limits of what had been committed to them, or that the proper question had not been addressed, or that they had misdirected themselves in law. Reference was made to Board of Management for the Dundee General Hospitals v Bell's Trs 1952 SC (HL) 78 and Orr Ewing v Orr Ewing's Trs (1884) 11R 600. It was not sufficient simply to assert, as the pursuer did, that any opinion by the trustees was "erroneous and of no effect".

[8] Counsel also submitted that the action should be dismissed as incompetent. A challenge to the judgment of the trustees, being a challenge to a jurisdiction or power to decide which arose in a tripartite relationship, could only competently be made by way of an application for judicial review: West v Secretary of State for Scotland 1992 SC 385.

Argument for the fourth defender

[9] Counsel for the fourth defender adopted the first and second defenders' argument as to the relevancy of the pursuer's case but not the argument regarding competency. For there to be a liferent in subsistence up to 2009, there would have had to be a partnership in existence in which the deceased had capital at the date of his death, and from which the second defender was ordinarily earning his living at the date of death. The pursuer did not offer to prove either of these critical facts. It was not sufficient to offer to prove that the second defender was making a living from using assets of a former partnership. Nor did the pursuer offer to prove that there was no agreement after the deceased's death that the business, if it still subsisted, was not to be sold (in the absence of which agreement the pursuer's entitlement would have arisen in 1999 under the third declaration, which was not averred). Nor did the pursuer offer to prove that a partnership continued until 2009. Moreover, even on the pursuer's analysis, the conclusion for reduction was irrelevant: at best for the pursuer he had an entitlement under Clause Two to an accounting and to payment of his one-quarter share of capital. That did not give him a right to a share of any partnership asset. The pursuer failed to distinguish between the capital of a partnership on the one hand and the assets of the firm on the other. Finally, it was submitted that there was no relevant basis for calling the fourth defender, in her capacity as consenter to the disposition in favour of the first and second defender, as a party to the action. The correct defenders were the granters of the disposition.

Argument for the pursuer

[10] On behalf of the pursuer it was submitted that a proof before answer should be allowed in respect of the first conclusion, i.e. for reduction of the disposition, leaving the issue of accounting to be addressed at a later stage. The will required to be read as a whole. The deceased's intention was to make family provision in two stages: a liferent in favour of the second defender, followed by (or failing which) equal division among the four children. The defenders' construction was unduly technical: in order for Clause Two to take effect, it was not necessary for a partnership to subsist after May 1999. The conditions that required to be fulfilled were

• that at the date of his death, the deceased had capital of a partnership business, whether or not that business had ceased to trade; and
• that at the date of the deceased's death, the second defender as an individual was ordinarily earning his living from that business.

The testator's use of the words "as an individual" demonstrated that it was not necessary for the second defender to be earning his living at the relevant date from a business carried on by a partnership in which the deceased was a partner. The conditions related to existence of partnership capital and not to a subsisting trading partnership. "Earning his living from" the partnership business could be equated with "using the assets of" that business. As regards agreement that the business would not be sold, the pursuer offered to prove that the second defender continued to use the heritable property for ten years from which an inference of agreement by the fourth defender not to sell could be drawn. In these circumstances the fourth declaration did not take effect. So far as the trustees' opinion was concerned, the fact that a liferent subsisted for ten years must mean that the question whether the second defender was ordinarily earning his living from the business was asked and answered in the affirmative: it was not necessary expressly to aver this. With regard to the argument of the fourth defender, it was submitted that the purpose of reduction was to reverse a breach of trust by the first, second and third defenders who had treated the heritable property as if it was an asset that had fallen into residue, when it ought to have been treated, at the date of renunciation of the liferent, as a partnership asset. It was necessary to direct the action against the fourth defender because by signing the disposition as consenter she asserted that it formed part of the residue of the deceased's estate. She need not have entered the process but, unlike the third defender, had elected to do so.

Discussion

[11] The issue raised at the debate seems to me to be one of the proper construction of the deceased's will. It is not in dispute that the will ought to be read as a whole and that, so far as possible, all the clauses should be reconciled and given effect. Approaching the matter on this basis, I am of the opinion that the defenders' contention that the present action is irrelevant is well founded. It appears to me that the deceased, as testator, envisaged and provided for three possible scenarios with regard to the business of H & E Moir, Salmon Netters (or any other business in which he might have capital at the time of his death). These three scenarios were dealt with in a somewhat curious order in the will but were as follows:

(i) As at the date of the deceased's death, the second defender was no longer, in the opinion of the executors/trustees, earning his living from the business of H & E Moir, Salmon Netters, or other business in which the deceased had capital at the time of his death. This is the scenario in the fourth declaration; in this eventuality the deceased provided that the business or his capital therein or the proceeds in terms of partnership law were to fall into residue.

(ii) As at the date of the deceased's death, the second defender did have the benefit of the said business. This is the scenario in the third declaration; in this eventuality the business was to be sold and the net sale proceeds divided equally among the deceased's four children.

(iii) As at the date of the deceased's death, the second defender was ordinarily earning his living from the said business and it was agreed by any other partner or partners (i.e. by any partner or partners other than the second defender) that the business was not to be sold. This is the scenario in the opening words of Clause Two; in this eventuality the second defender would become entitled to the liferent specified in that clause and the provisions of the first declaration would take effect on disclaimer by the second defender of his liferent entitlement.

I observe in passing that the words "(in the opinion of my Trustees)" which appear in Clause Four do not appear in the opening words of Clause Two. Did this mean that the question whether the second defender was ordinarily earning his living from the business at the time of the deceased's death was to be decided by different means for each of the two clauses? In my opinion such an interpretation would be productive of absurdity if it led, as it might, to two different answers to the question. I am satisfied, reading the will as a whole, and bearing in mind that the trustees' judgment is also invoked in the first declaration, that the question whether the second defender was ordinarily earning his living from the business at the time of the deceased's death was to be decided by the trustees for the purposes of Clause Two as well as Clause Four.

[12] In order to succeed in the present action, the pursuer must aver and prove that the circumstances at the time of the deceased's death were those set out in the third scenario above. I agree with the defenders' contention that the first condition to be fulfilled was that there was in existence at that time not only a business but a business in which the deceased had capital. I reject the pursuer's contention that all that was required was the existence of any business in which assets of the deceased's business were being used. The will is specific in referring (in Clause Two) to "that business" and (in Clause Four) to "the said business" as being the business from which the second defender required to be earning his living in order to become entitled to the liferent. To interpret "that business" and "the said business" as references to the assets of a business formerly carried on by the deceased would be to confuse the capital of a partnership, which belongs to the partners, with the assets of the partnership, which belong to the firm and are not the property of any of the partners. The references in Clause Two to "capital" are to be construed, in my view, as references to the former, i.e. as references to the deceased's interest in a business in existence at the time of his death. The terms of the will are clear in restricting the opening of the liferent to the situation in which (a) the deceased's business is being carried on at the date of his death and (b) the second defender is ordinarily earning his living from that business.

[13] It follows, in my opinion, that for the liferent to take effect it would not have been sufficient, on a proper interpretation of Clause Two, for the second defender to have been carrying on a business at the time of the deceased's death using assets previously used in carrying on the business of H & E Moir, Salmon Netters, or any other business in which the deceased had an interest. It is of significance that the opening words of Clause Two refer throughout to a "business", indicating that the deceased had in mind a continuing business, whereas the fourth declaration refers to "the business, or my capital therein, or the proceeds in terms of partnership law", indicating that the deceased had in mind the possibilities of (a) a business still being carried on by the deceased at the time of his death but from which the second defender was no longer ordinarily earning his living or, alternatively, (b) a business which had ceased prior to the deceased's death but which had not yet been wound up and distributed to partners, including the deceased, according to their capital entitlement. I do not accept that the words "as an individual" which appear in the opening words of Clause Two assist the pursuer's argument: it is clear, in my view, reading the will as a whole, that these words are used to contrast capacity as an individual with capacity as an executor/trustee; as was pointed out during the debate, they also appear in the second declaration in relation to both the first and second defenders, the first defender being an executor but not a partner in the deceased's firm.

[14] The pursuer's difficulty does not, however, end there. Before there can be any question of the liferent having taken effect and having subsequently been disclaimed, the second of the two scenarios above must also be eliminated. The pursuer would require to aver and prove that there was agreement with the business's other partner or partners that the business was not to be sold. Without such agreement the executors would have been obliged to sell the business at that time and divide the proceeds among the four children. The pursuer does not aver that this is what ought to have happened. If, as appears to be the case, his position is that agreement not to sell can be inferred from subsequent events then in my opinion this would require to be averred in order to give fair notice of the basis upon which the pursuer contends that the third scenario above is the one which has in fact taken place.

[15] Turning to the words "in the opinion of my Trustees", I consider that the defenders' submission on relevancy is well founded in this regard also. In order to make a relevant case it would be necessary for the pursuer to aver either that the trustees were, at the time of the deceased's death, of the opinion that the second defender was ordinarily earning his living from a business in which the deceased had capital, or that the trustees were not of that opinion and that there was a valid basis in law for setting aside their opinion. So far as valid basis in law is concerned, I derive assistance from the speeches of the Scottish members of the Judicial Committee of the House of Lords in Board of Management for the Dundee General Hospitals v Bell's Trs (above). In that case the testator bequeathed a legacy to the Dundee Royal Infirmary, payable only "...if my trustees shall in their sole and absolute discretion be satisfied that at my death the said infirmary has not been taken over wholly or partly by or otherwise placed under the control of the State or of a local authority...". Lord Normand observed (p 89-90):

"Notwithstanding the words 'in their sole and absolute discretion', I do not regard the trustees as having a discretionary power under this will, in the ordinary sense of that phrase. The case differs from one in which, for instance, trustees are given a discretion to pay or not to pay or not to pay certain sums by way of maintenance of a particular beneficiary. The duty of the trustees was simply to apply their minds honestly to a consideration of the question whether a certain event had or had not happened at the date of the testator's death. If they were satisfied that this event had happened, or if they were not satisfied that it had not happened, they were bound to withhold the legacy. On the other hand, if they were satisfied that this event had not happened, they were bound to pay the legacy. In neither case did it lie within their discretion to pay or to withhold the legacy. In my view the effect of the words 'in their sole and absolute discretion' was simply to emphasise the testators' wish that the matter should rest entirely upon the satisfaction or non-satisfaction of the trustees, and that the trustees, and not the Court, were to decide as to the existence or non-existence of the given state of facts...

If this is the true construction of the clause, it is necessary to consider on what grounds the appellants can claim this legacy. They do not allege that the trustees acted dishonestly, and I can see no evidence that the trustees did not apply their minds to the proper question. Counsel for the appellants submits that the appellants can succeed if they prove that no reasonable man, fairly considering the facts, could have taken the view which the trustees took. I am prepared to assume that the burden of proof resting on the appellants is no heavier than this, though I think that it may well be heavier, having regard to the wording of this very unusual clause."

Lord Reid's opinion, at p 92, was as follows:

"In my opinion, the only reasonable interpretation of the words used by the testator is that he intended his trustees to be the sole judges of all the matters which they had to consider in carrying out the duty which he put upon them. That is the natural meaning of the clause and, even if it is capable of being otherwise construed, I can see nothing either in the context or in any other relevant circumstances to make one think that he had any other intention...

But, by making his trustees the sole judges of a question, a testator does not entirely exclude recourse to the Court by persons aggrieved by the trustees' decision. If it can be shown that the trustees considered the wrong question, or that, although they purported to consider the right question, they did not really apply their minds to it or perversely shut their eyes to the facts, or that they did not act honestly or in good faith, then there was no true decision and the Court will intervene: but nothing of that kind is alleged in this case. The appellants' case here is that, although the respondents acted with deliberation and in good faith, their decision was unreasonable in the sense that no reasonable man could have failed to be satisfied that the infirmary had not been placed under the control of the State before the testator's death. In this case the respondents have not objected to that being taken as a proper test, and I shall consider the facts on that view, but I wish to reserve my opinion whether that is the proper test in cases of this kind."

It seems to me that the duty imposed on the executors in the present case was similar in nature to the duty addressed in these observations. I was not referred to any authority in which the uncertainty expressed by Lord Normand and Lord Reid regarding the extent of the grounds of challenge has been confronted. But on any view it is, in my opinion, insufficient for the pursuer simply to aver that any opinion expressed by the trustees was "erroneous and of no effect". The pursuer's argument that one can regard subsequent events as an indication that the executors asked themselves the critical question and answered it in a particular way seems to me to be circular: the subsistence of a liferent from 1999 until 2009 depends upon Clause Two having taken effect; one cannot, logically, contend that the executors must have given effect to Clause Two in 1999 because a liferent is said to have subsisted thereafter.

[16] As regards the contention by counsel for the fourth defender that the pursuer has averred no relevant basis for reduction of the disposition by the executors in favour of the first and second defenders as individuals, I find the position to be less straightforward. The pursuer's interest qua beneficiary is a personal right to have the trust created by the deceased administered according to its terms; he has no right to the trust assets themselves. On the hypothesis that the second defender's liferent interest did take effect in 1999 and, as the pursuer avers, was effectively disclaimed by the second defender in 2009, the duty then incumbent on the executors in terms of the first declaration would have been to sell the business and to divide the net free proceeds of sale equally among the four children. Accordingly, if the transfer of the heritable property for no consideration to the first and second defenders constituted a breach of trust, the principal remedy available to the pursuer as beneficiary would be to demand an accounting by the executors/trustees. On no view is he entitled to insist upon a conveyance of a one-quarter pro indiviso share of the heritable property. That does not, however, rule out the possibility of the pursuer, qua beneficiary, seeking to set aside a transfer of heritable property by the executors/trustees in breach of trust. There is authority (not cited to me during the debate) that such a course of action is competent: see e.g. the observation of Lord Cameron in Callander v Callander 1975 SC 183 at p 210 that "A transaction in breach of trust is voidable at the instance of interested beneficiaries". Where, as here, the transferee has not given value for the trust property (and regardless of whether he or she is in good faith), it appears that in certain circumstances the transferee's title may be reduced in an action at the instance of the beneficiary: Armour v Glasgow Royal Infirmary 1909 SC 916; Bertram, Gardner & Co's Trustee v King's Remembrancer 1920 SC 555, Lord Skerrington at p 562. (For a fuller discussion, reference may be made to Professor J M Thomson, "Unravelling Trust Law: Remedies for Breach of Trust" 2003 JR 129.) The legal basis of such an action would seem to be the reversal of unjustified enrichment. I am not aware of any authority to the effect that a pursuer must aver and prove that recovery from the trustee in pursuance of the obligation to account is impossible or impracticable before a remedy opens up against the third party transferee. Since, however, I did not hear full argument on these matters, and since the view that I have taken on other issues renders it unnecessary for me to express a concluded view on this one, I prefer to reserve my opinion as to whether the pursuer's averments and pleas-in-law in the present action (which are not framed on the basis of unjustified enrichment) would have been sufficient to entitle him to seek reduction of the disposition in favour of the first and second defenders.

[17] As regards the fourth defender alone, I accept the submission that no relevant basis has been averred for calling her as a defender. As consenter to the disposition in favour of the first and second defenders, she has no interest to contest its reduction; success by the pursuer in having the disposition reduced would have no consequences so far as the fourth defender is concerned. She is not an executor/trustee and no accounting or payment by her is or could relevantly be sought by the pursuer. That does not mean that she is open to criticism for having lodged defences in order to plead inter alia that she should never have been called at all; she was, in my view, entitled to state a defence separate from that of the other defenders at least as far as the stage of obtaining a judgment from the court that no relevant claim is made against her. It respectfully appears to me that the appropriate course of action for the pursuer would have been to seek a warrant to intimate the action to her, as was done with regard to the fourth child, Kenneth George Moir.

[18] As I have held that the action in so far as directed against all of the defenders is irrelevant, it is not strictly necessary for me to address the argument on competency presented on behalf of the first and second defenders. For what it is worth, however, my opinion is that it is not well founded. In McDonald v Secretary of State for Scotland 1996 SC 113, a prisoner claimed to have been the subject of a number of illegal searches, and a question arose as to whether this claim could only be pursued by way of an application for judicial review in the Court of Session. Lord Clyde observed (p 116-7):

"The single question in this appeal is whether the case is within the jurisdiction of the sheriff court. If it is an ordinary action for reparation it may properly proceed within the sheriff court. If it involves the supervisory jurisdiction of the Court of Session then the action must be dismissed. The question can be framed in terms either of jurisdiction or of competency and the defender raises it in his first two pleas in law respectively in each of these formulations, although it is on the first plea of jurisdiction that the matter has formally been determined in the sheriff court. However it is formulated the question falls to be answered essentially by identifying the issue which is raised in the case. The form of action and the remedies sought may be of assistance towards solving the problem but the final answer is to be found in a proper understanding of what the action is truly about..."

In WM Fotheringham & Son v British Limousin Cattle Society Ltd 2004 SLT 485, an Extra Division applied this dictum in holding that an action which was essentially a petitory one seeking reparation for loss allegedly sustained as a consequence of abuse of a dominant position did not truly constitute an indirect invocation of the supervisory jurisdiction of the court. The pursuer's claim in the present case seems to me to be, in essence, for an accounting by trustees of their intromissions with the deceased's estate and for payment of a sum said to be due to the pursuer in his capacity as beneficiary. It would be surprising if the presence within that claim of a challenge to the exercise of trustees' judgment necessitated the framing of an action of accounting as an application to the supervisory jurisdiction or, worse still, if it required two parallel actions to be raised in the same or different courts. In my opinion the incidental matter of the exercise of judgment is not what this action is truly about and so it was not incompetently raised as an ordinary action. I reserve my opinion as to whether the circumstances of the present case give rise to the kind of tripartite relationship described by the Court in West v Secretary of State for Scotland.

Disposal

[19] For these reasons I shall sustain the second plea-in-law for the first and second defenders and the first plea-in-law for the fourth defender, and dismiss the action.