Stewart v Henderson [2007] ScotCS CSOH

OUTER HOUSE, COURT OF SESSION

[2007] CSOH 14

A539/05

OPINION OF LORD BRODIE

in the cause

JANET STEWART

Pursuer;

against

JAMES HENDERSON

Defender:

________________

Pursuer: Young; Dundas & Wilson

Defender: A. J. Carmichael; Jardines

30 January 2007

[1] In this action where the parties are sister and brother, the pursuer seeks decree in the following terms:

"For decree ordaining the defender to implement his obligations in terms of a Deed of Variation of the Estate of the late George Henderson, by executing and delivering to the pursuer within fourteen days a valid Disposition of his interest in the heritable Subjects known as and forming 20 Peebles Road, Penicuik being the Subjects more particularly described in Disposition by Mrs Janet Sneddon or Chalmers as Trustee of the late Alexander Sneddon in favour of Mrs Margaret Henderson, dated 10^th and recorded in the Division of the General Register of Sasines applicable to the County of Midlothian (formerly Edinburgh) on 15^th May, 1980; and failing implement by the defender within fourteen days for Warrant and authority to the Deputy Principal Clerk of Session on behalf of the defender to execute and deliver to the pursuer the Disposition of said Subjects; and for the expenses of the action."

[2 ] The action came before me for discussion on procedure roll on 19 January 2007. The pursuer was represented by Mr Andrew Young, Advocate. The defender was represented by Miss Ailsa Carmichael, Advocate. By way of preliminary, I allowed the Closed Record to be opened up and amended in terms of the Minute of Amendment for the pursuer and answers for the defender, as adjusted. Counsel then addressed me in support of their preliminary pleas.

[3 ] Miss Carmichael moved me to sustain the defender's first plea-in-law and dismiss the action. She drew my attention to the averments on the basis of which the pursuer sought decree of implement. Essentially these were as follows:

"The pursuer is the daughter of the late George Henderson, who died on 10^th October, 1983. The defender is one of the pursuer's brothers. In terms of the Will of the late George Henderson, dated 23^rd February, 1983 the pursuer was granted the liferent of the property at 20 Peebles Road, Penicuik, the fee being left to the pursuer, the defender, the pursuer's brother, Walter Henderson, and the pursuer's son, Gavin Mabon. In or around August, 1985 the pursuer, as sole surviving Executor of the late George Henderson, entered into a Deed of Variation with the defender, Gavin Mabon and Walter Henderson to vary the terms of the Will of George Henderson to convey to the pursuer as an individual the property at 20 Peebles Road, Penicuik. In terms of the Deed of Variation, the pursuer agreed to pay to each of [the defender] and Walter Henderson the sum of £7,000 in consideration for the transfer of the property to her. Said sums were duly paid to [the defender] and Walter Henderson. Following the execution of the Deed of Variation and in order to complete the pursuer's Title to the property, the parties to the Deed of Variation required to execute a Disposition in favour of the pursuer. Owing to an oversight on the part of the Solicitors then acting for the pursuer as Executor, no steps were thereafter taken to have executed and recorded a Disposition of the Subjects in the pursuer's favour. With reference to the defender's averments in answer, admitted that the defender signed a Deed of Variation in exchange for the sum of £7,000."

[4 ] Miss Carmichael emphasised that although the pursuer sought implement of what were referred to as the defender's "obligations in terms of a Deed of Variation", notwithstanding the calls in the defender's Answer 2, the pursuer has neither produced the Deed of Variation nor condescended upon its whole terms. It was understood that the Deed has been lost and, in its absence, unless the pursuer can prove its tenor, the present action cannot proceed further. Miss Carmichael reminded me that, the alleged obligation being one that related to heritable right, it required constitution in writing. As appeared from the Answer, the defender accepted that he had signed a document which he understood to be a Deed of Variation in exchange for payment of the sum of £7,000. Although this does not appear in terms in the defender's pleadings, Miss Carmichael expressly conceded on the direct instructions of the defender that he knew that the purpose of varying the Will of the late George Henderson was that the pursuer should obtain title to the property at 20 Peebles Road, Penicuik. However, it had been his understanding that by signing the Deed of Variation, he had done everything that he was required to do and in the absence of the deed or any narrative of its precise terms, no one is in a position to advise him as to what he is obliged to do. Miss Carmichael accepted that her position was unattractive but it did not follow from the admitted fact that the defender had signed something that was referred to as a Deed of Variation that he had granted any obligation whatsoever to grant a further deed. The pursuer was founding on a deed, which she had not produced and the terms of which she had not averred. In these circumstances, the action was irrelevant and should be dismissed.

[5 ] Miss Carmichael also drew my attention to the defender's fourth plea which is a plea of prescription. It proceeded on the assumption that the pursuer could be taken to have pled a relevant case to the effect that the defender had become bound to grant a disposition in favour of the pursuer by virtue of his being a party to a Deed of Variation executed in August 1985. The defender had averred that he had returned the signed document to solicitors acting on behalf of George Henderson's executors on or about 9 August 1985 and, in any event, by, at latest, 14 August 1985. The present action had been served on 17 August 2005. Accordingly, it was the defender's position that any obligation that may have been incumbent upon him by virtue of the Deed of Variation had prescribed by the vicennial prescription provided by Section 7 of the Prescription and Limitation (Scotland) Act 1973. By way of response, the pursuer has averred that it was only after 23 August 1985 that she and her son, Gavin Mabon, signed the Deed of Variation, and accordingly, no obligation was incumbent upon the defender prior to that date. Miss Carmichael did not dispute the principle that, generally speaking, unless all parties to a contract are bound then none are bound, but something might turn on the exact terms of the Deed of Variation and therefore the pursuer was not in a position to invoke that principle when she had neither produced the Deed of Variation nor condescended upon its terms.

[6 ] On behalf of the pursuer, Mr Young sought to persuade me to grant decree de plano, in terms of his second plea-in-law. Although the conclusion was for decree ordaining the defender to execute and deliver a valid disposition, it was clear from the terms of Article 3 of Condescendence, that what was looked for was for the defender to sign, as consenter, the disposition which had previously been executed by Gavin Mabon and Walter Henderson. If, however, the court was not satisfied that the defences were irrelevant, then Mr Young sought allowance of proof before answer. He accepted that prior to any proof, he would require to establish the terms of the Deed of Variation by way of action of proving the tenor.

[7 ] Mr Young drew my attention to the pursuer's averments in Article 2 of Condescendence. As appeared from these averments, what the pursuer was saying was that the purpose of the Deed of Variation was that the pursuer should get sole title to the property. It was not said that the Deed of Variation imposed an express obligation on the defender to grant a disposition. Where one has an acceptance that the property was to be transferred to the pursuer as an individual, the precise mechanisms for achieving that might vary. However, it was a necessary consequence of the deal which had been done among family members that each would take such steps as were necessary to give effect to the substance of the Deed. Mr Young accepted that as the defender's interest in the fee of the property was heritable in nature, any obligation in relation to it would have to be constituted in writing. However, in his Answers the defender accepts that he did execute a Deed of Variation and that he received payment of the sum of £7,000 for having done so. He does not aver what, in substance, were the terms of the Deed. He does not say why he was paid for executing it. He nevertheless avers that he has performed all and any obligations incumbent upon him. To aver that and yet to claim not to know what his obligations were was inconsistent. Mr Young referred to the decision in Gray v Boyd 1996 SLT 60. In that case (supra at 53) the Lord Justice Clerk had stated that there is no warrant in principle or practice to the effect that where a party denies a fact which is within his knowledge, that denial should be held to constitute an implied admission merely because it is considered that he has been less than candid. However, there may be cases where a defence will be held to be irrelevant if there are admissions made of certain facts which, in the absence of explanation, give rise to presumption, coupled with a general denial but no such explanation. Thus, submitted Mr Young, there are cases, of which this was one, where a party's admissions went sufficiently far to render the pleadings irrelevant, in the absence of explanation displacing what would otherwise be the inference to be drawn from the admissions. Mr Young also drew attention to the Opinion of Lord McCluskey in Gray v Boyd supra at 64L to 65A where he approved the statement by the Sheriff in Lossie Hydraulic Co v Ecosse Transport Ltd 1980 SLT (Sh Ct) 94 at 97: if a defender chooses to rely on a skeleton defence which is clearly evasive and incomplete, he can expect defence to be construed very strictly against him on relevancy questions. By adopting that approach, Mr Young invited me to find that the defences in the present case should be read to include an implied admission that the effect of the Deed of Variation was as had been averred by the pursuer. The question for the court was whether enough had been admitted by the defender to cut through the need for the action to go to proof, with the incidental need to prove the tenor of the Deed of Variation. If it were considered that there was insufficient by way of admission to allow decree de plano to be granted, it would be necessary to sist the action in order to allow for the proving of the tenor of the Deed of Variation.

[8 ] It was Mr Young's submission that the defender's averments in relation to prescription were irrelevant. The onus was on the defender to make out a prescription defence. Any variation of the Will of the late George Henderson required agreement among all those having an interest. Accordingly, until the Deed of Variation was signed by everyone, no one was bound. As had been indicated by Miss Carmichael, the action here was served on 17 August 2005. To make a case that the defender's obligations had prescribed by the passage of 20 years, it was necessary for the defender to aver that all those having an interest had executed the Deed of Variation 20 years prior to that date. The defender had not done so. Accordingly, his averments were insufficient to support his plea of prescription, and that plea having been repelled, there was no reason not to grant decree de plano.

[9 ] In a second speech, Miss Carmichael responded to Mr Young's submission that the defender's averments, including his averments in relation to prescription were irrelevant. Miss Carmichael submitted that the defender had done enough to raise the prescription point. It was for the pursuer to answer it. Miss Carmichael did not dispute the principle that unless all parties to a contract are bound, then none are bound, but the pursuer's averments to the effect that she and her son had not executed the Deed of Variation until after 23 August 1985 had to go to proof. Even leaving aside the defence of prescription, this was not a case where the court could grant decree de plano. Whereas the conclusion seeks to ordain the defender to implement his obligations in terms of a Deed of Variation, the pursuer's averments do not identify any specific obligation incumbent upon him. Rather, what is averred is that following the execution of the Deed of Variation, the parties to the Deed "required" to execute a disposition in favour of the pursuer. The pleadings are silent as to why that should be so. This was a fundamental irrelevancy at the heart of the pursuer's action. The defender was being asked to implement an obligation when the basis of that obligation was not made clear in the pleadings. Mr Young had made much of what he had described as the defender's lack of candour. The defender accepted that he knew that the purpose of his executing the Deed was that the pursuer should obtain title to the property. What he does not know is precisely what he bound himself to do by executing the Deed. Moreover, he does not know whether any other party in fact executed the Deed. The defender's position is that he asks the pursuer to show him why he is bound to do what the pursuer says he is bound to do. This is not a case where the defender is hiding behind bare denials of matters within his knowledge. As matters stood, the pursuer had put forward nothing which demonstrated why, as a matter of law, the defender should be held to be obliged to grant a disposition in her favour.

[10 ] Miss Carmichael accepted that the position adopted by the defender (which has necessitated this litigation between sister and brother) is unattractive. Miss Carmichael could hardly do otherwise. The defender admits that in terms of the Will of the late George Henderson, the fee of the property at 20 Peebles Road, Penicuik was bequeathed to the pursuer, the defender, their brother, Walter Henderson and the pursuer's son, subject to a liferent in favour of the pursuer. He avers that he signed a deed, the admitted purpose of which was to vary the Will with the object that the pursuer should obtain sole title. The defender admits that he received the sum of £7,000 for executing that Deed. I see that as an acceptance by the defender that he was party to a family arrangement in terms of which he agreed to give up all interest he had in the heritable property in return for a sum of cash. It is difficult to envisage such an arrangement that did not include, either as an express or implied term, an obligation upon the defender to convey to or renounce in favour of the pursuer all right, title and interest he may have had in the property, whether in terms of the Will or otherwise, subject, perhaps, to his legal costs being met by the pursuer. The defender, however, disputes that. He maintains that the pursuer must establish her entitlement to require him to consent to the disposition which is a necessary step in her obtaining title and, moreover, establish why any entitlement that she may have had has not prescribed. By withholding his co-operation he is, as it were, standing on his rights or, more precisely, what may be his rights if the pursuer cannot establish the contrary.

[11 ] At this stage in the proceedings I cannot say that, as a matter of law, the defender is not entitled to maintain this position. The pursuer's case, as presently pled, relies on the terms of the Deed of Variation and yet she is not in a position to aver what these terms may have been. I understood Mr Young to accept that if he is unable to prove the tenor of the Deed of Variation, he may not be able to proceed further with this action. I can see why that might be so. While an obligation to do everything reasonably necessary to secure good title to the pursuer might readily be inferred, I do not consider that it can be asserted, simply on the basis of the pleadings, that such an obligation would necessarily arise in the circumstances, irrespective of the express terms of the Deed. As the terms of the Deed of Variation are not known, it cannot be said what was its effect. That was the substance of Miss Carmichael's submissions and I agree with that, however sympathetic I might be to the position adopted by Mr Young on behalf of the pursuer. Moreover, I do not consider this to be an example of a case where the defender's pleadings display a lack of candour. If anything, they appear to me to demonstrate a brutal frankness. He puts his sister to her proof. There is no reason, in law, why he should not do that.

[12 ] In relation to prescription, I am also with Miss Carmichael. I consider that by averring the date at which the defender signed the Deed of Variation, she has done enough to set out a basis for her prescription plea. She does not dispute the principle relied on by Mr Young: that until all parties to a contract are bound, no party is bound. What she does is to aver that the defender does not know when other parties signed the Deed. Again, he puts the pursuer to her proof. It is therefore for her to establish why such obligation as the defender may have undertaken by signing the Deed of Variation has not prescribed.

[13 ] I shall accordingly allow both parties proof of their respective averments. In the course of his submissions, Mr Young indicated that if I were to allow a proof he would wish this action sisted in order that he might proceed with an action for proving the tenor of the Deed of Variation, which appears to have been lost. I did not understand Miss Carmichael to offer opposition to that proposal but she expressed a preference for the question of sist of these proceedings to be left over until I had determined the other issues raised at debate. I propose to follow Miss Carmichael's suggestion. The case will be brought out By Order for discussion of future procedure in the light of this Opinion.

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE]
	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Stewart v Henderson [2007] ScotCS CSOH_14 (30 January 2007) URL: https://www.bailii.org/scot/cases/ScotCS/2007/CSOH_14.html Cite as: [2007] CSOH 14, [2007] ScotCS CSOH_14

Scottish Court of Session Decisions