COX AGAINST PETER COX AND KAREN COX [2018] ScotCS CSOH

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[1] By this action, which came before me for a proof before answer, the pursuer,

Mrs Catherine Thomson Cox, has brought proceedings against her son, Peter Cox and his

wife, Mrs Karen Cox. The case has arisen from a dispute in the Cox family over the sale of

[2] The first ground on which the pursuer’s action proceeds is that the defenders acted

in breach of the fiduciary duty they allegedly owed to the pursuer as her agents by

procuring the transfer from her to them of the net free proceeds from the sale of the former

family home. The property, which was owned in common by the pursuer and her late

husband and on his death by the pursuer, is at 21 Easter Drylaw Bank, Edinburgh. I shall

refer to this property as “Easter Drylaw”. The net free proceeds of the sale amounted to

£122,640.20. The pursuer claims that the defenders in effect misappropriated these funds for

their own benefit. In particular, she maintains that they used most of the money (£105,000)

to purchase a house at 1 Almondside, Kirkliston, title to which they took in their own

names. I shall refer to this property as “Almondside”. The pursuer alleges also that the

defenders wrongfully retained for their own use the balance of the net free proceeds of

[3] The pursuer’s case on her first ground of action is that she is the true or beneficial

owner of Almondside, it having been intended by all concerned that title to the property

should be taken in her name rather than in the defenders’ names; the pursuer’s position is

that the defenders hold the property in trust for her benefit as their principal, and that they

are accordingly bound to transfer the title of that property to her. The pursuer asks the court

to pronounce declarator to that effect; and she seeks decree ordaining the defenders to grant

and deliver to her a disposition of that property. In addition, the pursuer concludes for

decree for payment by the defenders to her of the balance of the net free proceeds, namely

the sum of £17,640.20. She claims that these funds are also held in trust for her by the

[4] The pursuer’s second and alternative ground of action is based on unjustified

enrichment. Here the pursuer says that the defenders have been unjustifiably enriched at

her expense by the transfer of the net free proceeds of sale to them; she claims that this was

done in error and that the defenders are accordingly now obliged to repay the net free

proceeds to her after account has been taken of mortgage payments made by the defenders

[5] At the proof the pursuer gave evidence in support of her case. She called as

witnesses her two daughters: Mrs Catherine Cox or Mitchell and Mrs Caroline Cox or Jones.

Both defenders gave evidence. In addition, they called Mr Robert Fife and Mr Richard

Loudon, both solicitors from Messrs Clyde & Co. (formerly Messrs Simpson & Marwick)

[6] The backdrop to the present action may be summarised as follows. Most of this was

[7] For many years the pursuer, who is now 82 years old, and her late husband lived in

the house at Easter Drylaw; they rented the property from the local authority. The first

defender gave unchallenged evidence that in or around 2000 his late father suggested to him

that it would be a good idea to look into the possibility of buying the house under the Right

to Buy Scheme as an investment for the defenders in the future. This would be achieved by

the pursuer and her late husband exercising their right to buy the house at a discounted

price and taking out a mortgage over it, which the defenders would repay. Mr and Mrs Cox

senior would be entitled to live in the house rent-free until their deaths, whereupon the

defenders would inherit the property. The first defender said that the whole family was in

agreement about the scheme. I did not understand any of the other witnesses to disagree

with that, at least in the sense that everyone in the family was aware of the arrangements

[8] In furtherance of this plan, in or around 2002 the pursuer and her husband

purchased Easter Drylaw from the local authority. The property was valued at that time at

£53,000. The discount available under the Right to Buy Scheme was £31,800. The pursuer

and her husband borrowed the balance of the purchase price, namely the sum of £21,200

from Halifax PLC by way of a loan secured over the property. All payments towards the

loan were made by monthly direct debits from the defenders’ joint bank account. In

November 2008 the defenders repaid the outstanding balance on the loan in full by way of a

single lump sum payment of £12,600. The second defender explained in her evidence that

she and her husband took out a bank loan secured over their home in order to fund the

[9] The pursuer’s husband died in 2009. After his death she continued to live in the

property at Easter Drylaw. At some point following her husband’s death the pursuer made

[10] The pursuer gave evidence that she and her husband made cash payments to the

defenders towards the mortgage. I did not find her evidence on this point convincing. She

was vague as to the amounts and frequency of such payments and as to how they were

funded. The pursuer was not able to suggest any credible reason why she and her husband

would have chosen to make mortgage payments by such a circuitous and inconvenient

route; she accepted that they could have been made by direct debit from her own bank

account. Mrs Mitchell spoke to witnessing two payments, but beyond that was not in a

position to lend support to the pursuer’s account. The defenders strongly denied that any

such payments were made. I have little difficulty in preferring the defenders’ account on

this point. No satisfactory reason was suggested as to why a system involving the making

of cash payments in the manner and for the purpose described should have been adopted.

In the circumstances, I reject the pursuer’s evidence on this point.

[11] By about 2015 the pursuer was finding it increasingly difficult to manage in the

house at Easter Drylaw on her own; she was no longer able to use the stairs. She discussed

the problem with the first defender and it was agreed that she would move to a more

suitable property. In due course the property at Almondside was identified. The defenders

took the pursuer to see the property and she was very happy with it; it had a walk-in

shower and was in a good neighbourhood. It was close to where the defenders lived. The

defenders agreed to assist the pursuer with the practical aspects of selling Easter Drylaw

and moving to Almondside. This assistance extended to the second defender getting in

touch with Mr Loudon, for whose family she had previously worked, to make arrangements

for the marketing and sale of Easter Drylaw by Simpson & Marwick. The second defender

said (and I accept her evidence on the point) that she and her husband wanted the move to

be as stress-free for the pursuer as they could make it. The second defender impressed me

as a moderate and balanced witness. She was clear in her evidence that, whilst she and the

first defender were keen to help the pursuer, they understood that any decisions regarding

[12] The pursuer’s evidence was that she expected to become the owner of Almondside

following the sale of Easter Drylaw. She said that she was happy to leave the arrangements

for the sale and purchase in the defenders’ hands. She claimed that she had not understood

that the funds from the sale of Easter Drylaw would be used principally to purchase

Almondside in the defenders’ names. She thought that she would become the owner of

Almondside and that the money left over from the sale proceeds of Easter Drylaw would be

paid to the defenders in the expectation that it would be used to furnish her new property

and to take her on holiday. She described the latter aspect of matters as a gesture of

goodwill on her part in recognition of the contribution the defenders had made towards the

[13] The pursuer maintained that she had not understood the meaning, effect and

consequences of a mandate she signed in the offices of Simpson & Marwick authorising the

free proceeds from the sale of Easter Drylaw to be transferred to the defenders to enable

them to purchase Almondside and to retain the balance after payment of the purchase price,

fees and outlays. She claimed to have had only limited contact with and advice from the

solicitors instructed to deal with the sale and purchase transactions. According to the

pursuer, it was only after she had taken up occupancy of Almondside and received a council

tax notice showing the defenders to be the owners of the property that she appreciated what

had happened. Following that, her relationship with the defenders broke down. At a later

stage they took steps to evict her from the property. Eventually, she moved out of her own

[14] The pursuer’s daughter, Mrs Catherine Mitchell, gave evidence that the pursuer

trusted the defenders and was content to leave matters regarding the move to them. Her

understanding, based on what her mother told her, was that the pursuer would be buying a

new house for herself at Almondside with the sale proceeds of Easter Drylaw; there would

be some money left over. Mrs Mitchell said that in the face of repeated attempts by the

defenders to persuade the pursuer to sign over Easter Drylaw to them she had urged her

mother not to do so. She said that she was concerned that if the pursuer were to do that she

[15] At the time of the sale and purchase Mrs Mitchell’s impression was that the pursuer

seemed to be coping fairly well with the proposed move from her home. Mrs Mitchell did

not try to talk her out of the idea. When the council tax notice arrived, Mrs Mitchell thought

that there must have been a mistake. Mrs Mitchell said that the pursuer had then spoken to

the first defender about it; he told her that she had known that the title to Almondside was

to be taken in the defenders’ names. In response the pursuer said that this had not been her

understanding. Mrs Mitchell testified that it had always been in the back of the pursuer’s

mind that she could move back to Easter Drylaw or to the same area if things did not work

out at Almondside; that would only be possible if she was in a position to sell Almondside

[16] Mrs Caroline Jones, the pursuer’s other daughter, was not directly involved at the

time of the sale and purchase transactions. She said in evidence that her understanding was

that after the sale of Easter Drylaw, her mother would become the owner of Almondside.

Easter Drylaw had been the pursuer’s house; she was selling it in order that she could

acquire ownership of a property that was more suitable for her needs.

[17] The defenders’ position in evidence was that the pursuer agreed to sell Easter

Drylaw and that the proceeds of sale would be transferred from her to them so that

Almondside could be purchased in their names; they would be entitled to retain the money

left over from the sale. The pursuer would be entitled to live rent-free in Almondside for the

remainder of her life. The first defender said that the pursuer had wanted to put the title to

Almondside into the defenders’ names because, in the pursuer’s words, that would save any

trouble later on. According to the first defender, everyone in the family had been aware of

[18] The estate agency and conveyancing work for the sale of Easter Drylaw and the

conveyancing for the purchase of Almondside were handled by Messrs Simpson &

Marwick. The second defender had previously worked for the parents and brother of Mr

Loudon, the partner in charge of conveyancing at that firm. He explained that there was a

longstanding relationship between his family and the second defender. Mr Loudon was in

no doubt that it was the pursuer who was the client of his firm in respect of the transaction

for the sale of Easter Drylaw as she was the owner of the property. In support of this

understanding I note that there are documents and entries on the firm’s files making the

position clear – for example, a letter of engagement addressed and sent to the pursuer dated

7 May 2015. As the pursuer did not have an email address the second defender agreed that

Simpson & Marwick could use her email address (and in her absence her son’s) as one

means of contacting the pursuer. Notwithstanding this, the files clearly show that there was

a substantial level of direct contact between Simpson & Marwick and the pursuer in

connection with the sale of Easter Drylaw. For example, by letter dated 14 May 2015

Ms Emma Combe, a property assistant at Simpson & Marwick, wrote to the pursuer

enclosing a draft sales brochure and a draft home report; she asked if the pursuer would like

any amendments to be made to the brochure. The property was put on the market at offers

over £115,000. The solicitors contacted the pursuer directly in connection with the

arrangements for viewings of the property. There were a number of potential purchasers;

[19] Mr Loudon delegated the conveyancing work to a senior associate in the firm,

Mr Robert Fife. Mr Fife is a solicitor with substantial experience of residential conveyancing.

He was an impressive and convincing witness, who clearly had an excellent recollection of

the transactions. I accept his evidence, almost all of which went unchallenged.

[20] Mr Fife explained that the background to the transactions was provided to him by

Mr Loudon in the course of a discussion which took place on 16 June 2015. Mr Loudon

explained to Mr Fife that the defenders had funded the purchase of the former council house

at Easter Drylaw. The pursuer was now proposing to sell Easter Drylaw. The pursuer was

to transfer the proceeds of the sale to the defenders so that they could purchase Almondside

where the pursuer would henceforth live. Mr Fife’s clear understanding was that his firm’s

[21] The next day (17 June 2015) Mr Fife wrote to the pursuer advising her that he would

be handling the legal aspects of the sale of her property. He enclosed a copy of the offer

which had been received. He asked the pursuer to telephone him to go over the offer and to

let him have her instructions so that he could prepare a qualified acceptance.

[22] In the course of his evidence Mr Fife referred to a note he had prepared of a

telephone call he had with the pursuer on 24 June 2015. He had a clear and specific

recollection of the call. I accept his evidence about what was discussed between him and the

pursuer on the telephone. During the telephone call Mr Fife went through with the pursuer

the terms of the offer that had been received for the purchase of Easter Drylaw. He did this

under reference to a checklist, in line with his usual practice. He confirmed with the pursuer

that she had the offer in front of her as they were speaking. Mr Fife explained that it was his

invariable practice to go through matters methodically with the client. In particular, he

would always cover specifically what was to happen with the money received for the sale of

a property. During his discussion with the pursuer on the telephone Mr Fife stated that his

understanding (based on his discussion with Mr Loudon) was that the money from the sale

of Easter Drylaw was to go to the defenders to allow them to purchase Almondside in their

own names. He explained to the pursuer that she would have to sign a mandate authorising

the transfer of the free proceeds for this purpose from her client account with the firm to the

defenders’ client account. The checklist contains a note made by Mr Fife in red ink during

the call in the following terms: “Money going to Peter and Karen for their purchase - need

mandate”. Mr Fife’s clear evidence, which I accept, was that the pursuer gave her

instructions that this was what she wanted to happen. Mr Fife said that the telephone call

[23] On 25 June 2015 Mr Fife wrote to the pursuer following up on the previous day’s

telephone call. He enclosed a copy of the qualified acceptance he had prepared on the basis

[24] Thereafter the conveyancing progressed normally; missives were concluded, and

other routine matters of conveyancing and administration were efficiently attended to.

[25] By letter dated 23 July 2015 Mr Fife wrote to the pursuer confirming a telephone

discussion he had had with her the previous day in which she had said that she would be

willing to sign an affidavit certifying that a non-load bearing wall had been removed more

than 20 years previously. Mr Fife explained that he would prepare the affidavit so that the

pursuer could come in and sign it the following week along with the disposition and the

[26] On 29 July 2015, the day before settlement of the sale transaction, the pursuer

attended at Simpson and Marwick’s office in Albany Street, Edinburgh in the late afternoon.

Mr Fife recalled that the first defender accompanied her. The purpose of the meeting was so

that the pursuer could sign the documents necessary to give effect to the sale of Easter

Drylaw; these included the disposition and the affidavit. Mr Fife had also prepared a

mandate to reflect the instructions he had received from the pursuer on the telephone in

regard to the transfer of the sale proceeds to the defenders. He explained that he went

through the terms of the mandate with the pursuer in the course of the meeting. Mr Fife

said that he was in no doubt that the pursuer understood what the mandate meant and what

its effect was. He pointed out in his evidence that it was written in straightforward terms. I

“I, CATHERINE COX, authorise and instruct you to transfer the whole free proceeds

from the sale of 21 EASTER DRYLAW BANK, EDINBURGH, EH4 2QL to the joint

matter file of C0382.00006 in the name of Peter and Karen Cox whereupon the funds

will be used for Peter and Karen Cox’s purchase of 1 Almondside, Kirkliston. I

authorise you to pay to Peter and Karen Cox the balance of funds left over once the

[27] Mr Fife gave evidence that just before she signed the mandate the pursuer said,

almost under her breath, “should I sign this?” Mr Fife thought that she was questioning

herself. He did not understand her remark to be a direct question to him. His impression

was that the pursuer seemed to be hesitating before signing the mandate. Mr Fife then

explained to the pursuer that she was under no obligation to sign the document. He was

surprised by the hesitation since this was the afternoon before the settlement was due to

take place. Mr Fife’s reaction was to make it clear to the pursuer that she was not obliged to

sign. He said that the pursuer then looked at the first defender. The first defender said to

her: “it’s up to you mum”. Mr Fife said that he was quite clear that there was no undue

influence. After that the pursuer signed the document straight away. Completion of the

sale took place, as planned, the following day. The net free proceeds were transferred to the

defenders’ client account with Simpson & Marwick as envisaged in the mandate; they were

used to purchase the property at Almondside in the defenders’ names; the balance left over

[28] The pursuer duly moved to live at Almondside. In August 2015 she received the

council tax notice, to which I have already referred, showing the defenders to be the owners

of the property. She sent a change of circumstances form to the council intimating that she

was the owner. Thereafter relations between the pursuer and the defenders deteriorated.

On 10 March 2016 the pursuer and Mrs Mitchell had a meeting with Mr Loudon to discuss

the instructions he had received for the sale of Easter Drylaw. Mr Loudon gave evidence

that at the meeting the pursuer expressed concern about her security of tenure in the

property. Mr Loudon told her that he would approach the second defender to inquire

whether the pursuer could be granted a lifelong lease. In the file note of the meeting he

prepared on 11 March 2016 Mr Loudon recorded that the pursuer confirmed at the meeting

that she had met with Mr Fife and that she had given him instructions that she was content

for the sale funds to be paid into the defenders’ account. On 18 March 2016 Mr Loudon

Thank you for coming in to see me last week with your daughter Catherine.

I have now had a chance to recover our file from storage and also discuss the matter

with Bobby Fife our Senior Associate who carried out the legal work and met with

Bobby Fife has confirmed to me that he did discuss the sale of the property with you

on the telephone when taking instructions on the offer and also explained to you

prior to you signing the sale disposition as to payment of the proceeds of the sale.

We do have clear written instructions (copy attached) from you that the full proceeds

of the sale were to be paid into the account of Peter and Karen Cox to be used for the

purchase of 1 Almondside. Furthermore there are copies of numerous letters on file

throughout the transaction which were posted to you at your 21 Easter Drylaw Bank

I understand from my meeting with you that your move to 1 Almondside has caused

you some anxiety and you asked me to speak to Karen Cox in order to ask whether

she and her husband would be willing to enter into a formal lease giving you

security of occupation in the property. I am happy to do this but understand that

Karen Cox has been ill this week and felt it inappropriate to discuss the matter with

her. I will do so once I have ascertained that she has recovered sufficiently to have

I hope this helps clarify the position. I will be back in touch again once I have spoken

[29] On 22 March 2016 the pursuer telephoned Mr Loudon. A file note he prepared of

that call states that the pursuer said that she was content with the terms of his letter. She

asked if the defenders would give her a lease of Almondside. Mr Loudon said that he

would inquire about this once the second defender had recovered from her illness.

[30] Thereafter there was a further meeting at Simpson & Marwick attended by

Mrs Mitchell and her husband, by Mr Loudon and by his senior partner, Mr Gordon

Keyden. During his evidence Mr Loudon referred to a file note he prepared of that meeting.

It stated that Mr Mitchell said that all the family knew that the house at Easter Drylaw was

in the pursuer’s will to go to the defenders on her death because they had originally paid for

the house and the family were accepting of that. Mrs Mitchell did not have a recollection of

her husband making such a statement at the meeting, but in view of Mr Loudon’s note I find

[31] Thereafter the pursuer instructed her present solicitors and a complaint was made

against Simpson & Marwick to the Scottish Legal Complaints Commission. This led to

payment of the sum of £20,000 to the pursuer without admission of liability.

[32] Over the summer of 2016, relations between the pursuer and the defenders got

worse. There is no need for me to go into the details for the purposes of this judgment.

Suffice to say that an incident took place at Almondside on 9 July 2016 resulting in the

second defender being charged with assaulting the pursuer and Mrs Jones. In brief, the

incident arose from a disagreement over a suggestion made by the second defender that the

pursuer might consider paying some rent for her occupancy of Almondside. The second

defender explained that she had been unable to return to work after a period of serious ill-

health. She said that she was only looking for a modest rent of £200 per month. As well as

the issue over possible payment of rent, the defenders formed the view at the time (probably

mistakenly) that Mrs Jones was living at Almondside along with the pursuer. Mrs Jones

denied this. She said that she was merely a regular visitor. The outcome of the criminal

proceedings was that the second defender was found not guilty of the charge of assault after

trial in the Sheriff Court. Thereafter the defenders took legal steps to have the pursuer

removed from the property. She moved out of the property in January 2017, having raised

[33] What is of some interest for the purposes of the present action is that the pursuer

gave a statement to Sergeant Richard Homewood at South Queensferry Police Station on

10 July 2016. Asked about this in evidence, the pursuer suggested that she had been

confused when she gave the statement. She accepted that the statement was read over to her

and that she signed it. Sergeant Homewood testified that the statement was an accurate

record of what the pursuer told him. I accept the evidence of the police officer on that point;

he was a careful and responsible witness. I reject the suggestion by the pursuer that the

[34] The importance of the statement for present purposes is that it contains the following

“In about 2001 Peter and Karen bought my house I used to stay in with my husband

in Drylaw. They offered to do this. Since then they let me stay there rent free. They

suggested that I move closer to them. After my husband died I was happy to do this.

They sold the house in Drylaw and bought the house at 1 Almondside. I love it

there. It is lovely and all on one floor. They said it would be good as they live only

From the start this did not work out as planned. The first time I called my son to

help with my shopping he told me to ‘get my … coat on and get the bus’. In the first

6 months I was there I saw Peter only rarely but I never saw Karen at all.

Before what happened yesterday the last time I saw Peter was in January. They have

[35] In view of the clear and compelling evidence given by Mr Fife and Mr Loudon, I am

left in no doubt that the pursuer fully understood the meaning, effect, and consequences of

the mandate to which she put her signature. All members of her family agreed that the

pursuer is a strong-minded individual. Mrs Mitchell described her mother as an intelligent

woman of sound mind; she was, Mrs Mitchell acknowledged, someone who would not do

something that she did not want to do. That very much fits with my own impression of the

pursuer. She struck me throughout her evidence as an intelligent and capable person,

whose faculties appeared to be largely undiminished by age; she spoke with fluency and

was able to convey her views in court clearly. Although at times there were hints of a

complaint of undue influence aimed at the defenders, it is important to recall that the

pursuer makes no such allegation in her pleadings and her counsel made it plain that she

was not advancing any line of argument to this effect. Indeed, it is a notable feature of the

case that the pursuer does not seek reduction of the mandate. There were also, in the course

of the proof, some veiled criticisms of the adequacy and sufficiency of the advice given by

Simpson & Marwick to the pursuer. Again, the pursuer has no such claim in her pleaded

case. In any event, on the basis of the evidence that I heard, any such criticism would not be

justified. I am satisfied that the pursuer was properly advised by her solicitors as to all

relevant aspects of the transaction for the sale of Easter Drylaw.

[36] In my opinion, the mandate accurately reflected the pursuer’s intentions at the time

she signed it and constitutes reliable (and perhaps the best) evidence of what her intentions

truly were at that time. That was the clear import of Mr Fife’s evidence, which I accept in its

entirety. It is also notable that at the meeting on 10 March 2016 the pursuer told Mr Loudon

(whose evidence on the point I accept) that she had given Mr Fife instructions that she was

content for the sale proceeds of Easter Drylaw to be paid into the defenders’ account.

Subsequently the pursuer confirmed to Mr Loudon that she was content with what was

stated in his letter to her of 18 March 2016. The letter, it will be recalled, made it clear that

Simpson & Marwick had clear written instructions from the pursuer that the full proceeds of

the sale were to be paid into the account of the defenders to be used for the purchase of

Almondside. It is of interest also to note that in her statement to the police the pursuer said

that it was the defenders who bought the house at Almondside. The police statement also

confirms that it was the defenders (and not the pursuer and her late husband) who had

purchased Easter Drylaw. The statement contains no suggestion that the pursuer and her

late husband made any payments towards the mortgage. In my view, the pursuer’s police

statement lends important support to the defenders’ case and undermines the pursuer’s

[37] In my opinion, the evidence shows that the defenders were not acting as agents of

the pursuer in relation to the sale of Easter Drylaw or in regard to the purchase of

Almondside. On the contrary, she represented her own interests throughout the sale

transaction and did not act through the agency of the defenders. I find that the pursuer,

acting on her own behalf, willingly agreed to the free proceeds being transferred to the

defenders so that they could use them to purchase Almondside in their names. The

evidence of Mr Fife is strongly to that effect; Mr Loudon corroborates it. I conclude that the

pursuer trusted the defenders at the time of the sale and purchase transactions and was

satisfied that they would allow her to continue to live in Almondside rent-free for the

remainder of her life; if for some unexpected reason the move to Almondside did not work

out, the pursuer would have relied on the defenders to help her to find a solution, in

accordance with the trust that she reposed in them. Unfortunately, the relationship of trust

later foundered. This may have caused the pursuer, with the no doubt well-intentioned

support of Mrs Mitchell and Mrs Jones, to think better of what she had agreed to do. But the

difficulty remains the strong evidence that she fully understood what she was doing when

she agreed to the transfer of the free proceeds of the sale of Easter Drylaw to the defenders.

That cannot be unstitched because the pursuer has had second thoughts or changed her

mind in the light of the way in which events ultimately played out. In my judgment, it is

also clear that the pursuer willingly agreed that the defenders should be entitled to retain

the balance of the free proceeds that would be left over after the defenders’ purchase of

[38] I acknowledge that a relationship of agent and principal is capable of being implied

or inferred from facts and circumstances – agency is a question of fact (Gloag on Contract

(2nd ed), p 126; Eastern Marine Services (and Supplies) Ltd v Dickson Motors Ltd 1981 SC 355;

Royal Bank of Scotland v Shanks 1998 SLT 355). In the present case, however, the evidence

does not yield any such inference. The evidence goes no further than showing that the

defenders offered to assist the pursuer with some of the practical aspects of moving home,

for example by putting her in touch with solicitors and by acting as a point of contact by

email. In my view, the evidence falls well short of entitling the court to draw the inference

that a relationship of agency was constituted. Importantly, when it came to the sale of

Easter Drylaw there was strong evidence that the pursuer, advised by her solicitors, was

acting in her own interests and not through the medium of agents; she was the firm’s client

in a direct sense, and it was to her that Mr Fife looked for instructions; and from her that he

received them. It is clear from the evidence that the defenders did not play the part of

agents in that process. Mr Loudon approached matters on the same footing as Mr Fife.

Looking at the evidence as a whole, the circumstances of the case are not supportive of an

inference that the defenders were acting as the pursuer’s agents. I conclude that there was

no relationship of agency between the pursuer and the defenders in regard to the sale of

Easter Drylaw (or in relation to the purchase of Almondside). It follows that the pursuer’s

case, insofar as founded on the existence of an agency relationship, must fail.

[39] As to the pursuer’s case based on unjustified enrichment, I can deal with this

somewhat more briefly. It depends essentially on the proposition that the transfer by the

pursuer of the free proceeds of the sale of Easter Drylaw to the defenders was made in error.

I reject that proposition on the facts of the case. For the reasons I have already set out, I find

as a fact that the pursuer was fully aware of what she was doing when she signed the

mandate and thereby instructed her solicitors to transfer the free proceeds of the sale to the

defenders; she was not under any misapprehension as to the meaning, effect, and

consequences of the mandate. That interpretation of the evidence is, as it seems to me,

consistent with the fundamental basis underlying the original arrangements, which

extended to the ultimate devolution of Easter Drylaw to the defenders. When, contrary to

the expectation of the parties, it became clear that Easter Drylaw would have to be sold and

the defenders would no longer be able to inherit the property, it made complete practical

sense for the sale proceeds to be transferred to the defenders instead – in effect what had

been intended to happen on the pursuer’s death was simply being brought forward due to a

material change in circumstances. In line with the idea behind the original scheme, the new

arrangements would enable the defenders to purchase (instead of Easter Drylaw) a more

suitable property where the pursuer would be allowed to live rent-free for the rest of her

life, as it had been intended that she would have done had it been possible for her to

continue living in Easter Drylaw. I find that this is what the pursuer intended to happen at

the time of the sale; it explains why she was willing to sign the mandate. It is also what the

defenders intended should happen at that time. The unfortunate fact that the relationship

between the pursuer and the defenders later broke down and the pursuer did not continue

to live in Almondside as had been envisaged does not undermine the validity of this

analysis. Accordingly, since there was in fact no error on the part of the pursuer in relation

to the transfer of the free proceeds of Easter Drylaw to the defenders, there is no basis on

which the law of unjustified enrichment can step in to reverse the transfer of the sale

proceeds. It follows that on this branch of the case the pursuer’s claim must also fail.

[40] In the result I shall sustain the defenders’ second and third pleas-in-law, repel the

pursuers’ pleas, and grant decree of absolvitor. I shall reserve meantime all questions of

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> COX AGAINST PETER COX AND KAREN COX [2018] ScotCS CSOH_49 (18 May 2018) URL: http://www.bailii.org/scot/cases/ScotCS/2018/[2018]_CSOH_49.html Cite as: [2018] ScotCS CSOH_49, [2018] CSOH 49

Scottish Court of Session Decisions