Summary of Opinion of Lord Macphail
Aduke Ayinke Fernandez (Pursuer)
against
Chief Oladeinde Fernandez
(Defender)
18th
August 2006
The Rules of the Court of Session allow
for a judgment to be made against a party to an action who fails to appear at
an appointed hearing, known as a "decree by default". If granted, a decree by default will result
in the party seeking it being granted payment or another order in their
favour. In this action, Mrs Fernandez
("the pursuer") sought payment of sums allegedly due by her ex-husband, Chief Oladeinde Fernandez ("the defender"), under an "out of
Court Settlement" agreed between the parties in settlement of their
divorce. Lord Macphail
granted a decree by default when the defender failed to appear at a continued hearing
in the action for payment, and awarded the pursuer £1,020,000 plus interest and
expenses.
In
May 2003, Mrs Fernandez raised proceedings against the defender at the Court of
Session for divorce and financial provision.
The pursuer resided in Edinburgh and the defender resided in France. In August
2003, the parties signed a document entitled "Out of Court Settlement" which
was an agreement to settle the divorce action.
The agreement included the provisions that the defender would pay the
pursuer £30,000 per month for three years, that both parties would withdraw all
court actions against each other and that they would not take any future court
action against each other regarding their matrimonial affairs. It was stated that the agreement was to be
final with regard to the divorce action in Scotland and also with regard to an action in the French
courts brought by the pursuer in relation to their château in France. This agreement was to remain strictly confidential
and only between the two parties.
The
defender subsequently maintained that the agreement was at an end because the
pursuer had failed to withdraw the action regarding the château in France and had failed to keep the agreement confidential in
that she had disclosed its contents to her staff and solicitors. He therefore did not pay the pursuer
periodically as agreed. The pursuer then
lodged an action for declarator and payment, asking
the court to declare that the agreement remained legally binding and
enforceable and that the defender should pay her the £30,000 at the end of each
month from August 2003 for three years.
To that end she sought £1,020,000 plus interest and expenses.
A
four-day hearing was fixed for the action in October 2005, which proved
inadequate to hear all the evidence.
Lord Macphail accordingly appointed a
continued hearing from 15 to 18 August 2006 as these were the only dates in 2006 at which the
defender's counsel was able to attend.
However, on 14th July 2006, the defender's solicitors informed the court that
they had withdrawn from acting for him.
The pursuer's solicitors therefore used the procedural rules to try to
find out if the defender intended to continue to defend the action. They failed to locate him at the château or
at the Ritz Hotel in Paris where he also resided. Although he was eventually traced at the
château, the defender refused to accept the notice from the pursuer's
solicitors. The pursuer's solicitors
therefore contacted the defender's lawyers in New York and Paris to inform them that the pursuer intended to ask for
decree by default for the money and declaration sought.
The
defender then instructed a new firm of solicitors in Edinburgh. His new
solicitors asked the court to discharge the four-day hearing in August as they
had only recently been instructed. Lord Macphail set a hearing for 11 August 2006 to hear argument
as to whether the four-day hearing should be discharged. Lord Macphail
refused to discharge the hearing. His
Lordship noted that there had been no reasons given for the defender's
withdrawal of instructions from his previous solicitors, or for his failure
immediately to instruct new solicitors.
No reason had been shown by the defender that it would be in the
interests of justice to discharge the four-day hearing.
Neither
the defender nor his representatives appeared when the case called on 15 August 2006. The
defender's solicitors informed the court by letter that they had withdrawn from
acting for him, stating that the case papers had not yet been passed to them by
the previous solicitors. It was also
stated that the defender did not wish to stall the court proceedings and that
he has always been willing to give evidence, either in Edinburgh or in Paris if he was unable to travel. His witnesses were also willing to attend
court but were not available to attend that week. They were, however, in attendance at the
first four-day hearing in October 2005.
Counsel for the pursuer therefore moved for decree by default by virtue
of the defender's failure to appear.
Summary of Lord Macphail's
Opinion
·
In view of the
history of the defender's conduct in the litigation it was impossible to be
satisfied that he had any intention of proceeding with defending the case. He had not offered any explanation for his,
or his witnesses', alleged inability to appear at Court on 15 August. The date
for the hearing had been fixed by agreement, at which time he had not given any
reason why he would be unable to attend.
His failure to immediately instruct new solicitors when his previous
solicitors withdrew from acting for him was unexplained when he knew that a
hearing had been fixed for 15 August.
The pursuer would be seriously prejudiced by any further delay (para. [29]).
·
His Lordship
granted declarator that the agreement was a legally
binding and enforceable agreement and ordered payment to the pursuer of the sum
of £1,020,000 as sought by her. Interest
was also awarded (para. [30]).
·
The defender was
found liable to the pursuer for the outstanding expenses in the action, including
additional fees incurred (paras. [31] and [32]).
NOTE
This summary is provided to assist in
understanding the Court's decision. It
does not form part of the reasons for that decision. The full report of the Court below is the only
authoritative document.
|
OUTER HOUSE, COURT OF SESSION
[2006] CSOH 133
|
|
A331/04
|
OPINION OF LORD MACPHAIL
in the cause
ADUKE AYINKE
FERNANDEZ
Pursuer;
against
CHIEF OLADEINDE
FERNANDEZ
Defender:
________________
|
Pursuer:
J M Scott;
Turcan Connell
Defender: No appearance
18 August 2006
Introduction
[1] On
15 August 2006 I granted
decree by default against the defender in terms of Rule of Court 20.1(1)(c) and
(4). I now explain my reasons for doing
so.
The nature of the action
[2] This is an action for
declarator and payment. The first
conclusion is for declarator that an agreement between the parties remains
legally binding and enforceable and that in terms thereof the defender is
obliged to pay to the pursuer £30,000 at the end of each month from the end of
August 2003 until the end of July 2006. The
second conclusion, as amended, is for payment by the defender to the pursuer of
£1,020,000. The third conclusion is for
expenses.
[3] The
following matters are not in dispute. The pursuer resided in Scotland,
and the defender resided in France.
In May 2003 the pursuer raised an action
against the defender in this Court for divorce and financial provision. In August 2003, however, the parties signed a
document headed "Out of Court Settlement". This is the agreement referred to in the
conclusion for declarator in the present action. It is referred to hereafter as "the
agreement". No 6/1 of process is a copy of it. In order to understand the matters to
which it refers, it is necessary to appreciate that the parties had two
daughters, Atinuke and Abimbola; that
one of their homes was a château in France, the Château du Bois Feuillette
("the château"); that at the time when
the parties signed the agreement, five actions between them were in dependence
in Scotland and in France; and that one
of the actions in France was an action at the instance of the pursuer which was
related to the château.
[4] It is unnecessary to set out the agreement in detail. What follows is an accurate transcription of
its material terms, with the spelling and syntax unchanged. It is headed:
"OUT OF COURT SETTLEMENT
Of the
divorce action in the Court of Session in Edinburgh, Scotland, between Aduke
Ayinke Fernandez (Pursuer) and Chief Oladeinde Fernandez (Defender)."
Clauses V, VII and VIII are in
these terms:
"V/ The
Chiefs will pay £30 000 per month to assist regulating personal affaires,
including maintenance for Abimbola, starting end of August 03 for a period of
three years. This time may be extended
and the amount increased at any time."
"VII/ Both
parties shall withdraw all court actions against each other and will not take
any court action against each other regarding matrimonial affaires any place
else.
VIII/ This
agreement as a final settlement of the divorce action in the Court of Session
in Edinburgh, Scotland and the Court Action for the Chateau in Paris, will
remain strictly confidential and only between the two parties. Both parties may also take some of the
contents of the wine cellar for personal use only, bearing in mind that most of
the collections in the cellar were made by both parties, for the wedding
celebrations of their two daughters, Atinuke and Abimbola."
[5] The defender maintains that the agreement is at an end
because the pursuer is in material breach of Clauses VII and VIII. She has therefore brought the present action
for declarator that the agreement remains binding and enforceable. The defender avers that clause VII, which
provides that each party shall withdraw all court actions against the other, is
fundamentally important and that the pursuer, by failing to instruct the
withdrawal of her French action relative to the château, is in material breach
of one of the most fundamental aspects of the parties' agreement. He also avers that Clause VIII, which
provides that the agreement is to remain strictly confidential between the
parties, is of fundamental importance and that the pursuer is in material
breach of that clause in that she disclosed the content of the agreement to her
staff and to her solicitors. The pursuer
denies that she is in breach of the agreement and she concludes (1) for the
declarator to which I have referred and (2) for decree for payment of the
unpaid monthly sums referred to in Clause V of the agreement.
The procedural history of the action
[6] The summons was signeted on 10 May 2004. The
record was closed on 25 August
2004 and a proof before answer was allowed on 23 September 2004. A four-day diet of proof was fixed for 18, 19,
20 and 21 October 2005. The case
called before me on the morning of 18 October
2005. Much of the morning
was occupied with the hearing of an opposed motion on behalf of the defender
that his evidence should be taken on commission in Paris
for medical reasons. After the luncheon
adjournment I granted the motion. During
the examination-in-chief of the first witness for the pursuer, senior counsel
then acting for the defender intervened to seek an adjournment in order that
she could obtain instructions by telephone from the defender in Paris.
I allowed her to do so. The matter took some time, and it became
necessary to adjourn for the day at 3.17 p.m.,
after only some 30 minutes of evidence had been heard. The pursuer's proof was concluded on the
morning of the fourth day, 21 October
2005, and the remainder of that day was occupied with the evidence
of the first witness for the defender.
[7] The period of four days which had been estimated for the diet
of proof before answer had obviously been inadequate. On 25
January 2006 I heard counsel by order with a view to fixing dates
for the adjourned diet. It became clear
that the only dates in 2006 that would be suitable to counsel were 15, 16, 17
and 18 August 2006. In particular, the
position of the defender's counsel was that these were the only dates on which
the case could be heard in 2006. I
therefore appointed the continued proof to be heard on those dates, albeit that
the Court would be in recess. I also
continued to a date to be afterwards fixed the question of a commission to take
the evidence of the defender. There had
been some discussion of the possibility that any necessary commission might
take place in Paris on 10 and 11 August 2006.
[8] In the event, no steps were taken to execute the commission. The next step in procedure was initiated by a
letter to the Deputy Principal Clerk of Session from the defender's then
solicitors, Mowat Hall Dick, dated 13
July 2006, intimating that they were no longer instructed in
respect of this action and asking for it to be noted that they had withdrawn from
acting. The letter was received on 14 July 2006, the last day of term. In the afternoon of the same day the Court, on
the pursuer's motion, pronounced an interlocutor in terms of rule 30.2(1)
ordaining the defender to intimate whether or not he intended to proceed.
[9] Counsel for the pursuer informed me at a later date, as I
shall explain, about the steps the pursuer's solicitors took to serve on the
defender a notice in Form 30.2, as they were obliged to do by rule 30.2(2). On 19 July 2006 they served a notice by post
at the château, which was the address stated for the defender in the instance,
and on 20 July 2006 they served notices by post at his address in Brussels and
also at the Ritz Hotel in Paris where, the Court had been informed on 18 October
2005, he had been residing, unfit to travel. Such notice is, of course, effective service. In addition, however, the pursuer's solicitors
instructed huissiers to effect personal service on the defender. They sought him in vain at the château and at
the Ritz. At the château they were told
that he was not there and was out of the country. On 2
August 2006, however, they returned to the château and found the
defender there. They tendered the notice
to him, but he refused to accept it.
[10] On the same day, 2
August 2006, the pursuer's solicitors wrote to the defender's
lawyers in New York and Paris
intimating their intention to move for decree in the present action. The defender instructed a second firm of Edinburgh
solicitors, Tods Murray, on Friday 4
August 2006.
[11] Tods Murray wrote to the Deputy Principal Clerk of Session on Monday 7 August 2006 intimating
that they had been instructed to act on behalf of the defender in the present
action. On 8 August 2006 they enrolled a motion for the discharge of
the continued diet of proof fixed for 15
August 2006 and the three ensuing days "in respect that the
defender's previous agents have withdrawn from acting and new agents were
instructed on 4 August." The pursuer
opposed the motion, and I heard counsel on 11 August 2006.
The motion to discharge the diet
[12] At the hearing of the motion counsel who had not appeared at
the proof submitted on behalf of the defender that it would be in the interests
of justice to discharge the diet. The
defender had been entitled to withdraw his instructions from his legal advisers
if he was dissatisfied with them. The
interests of justice permitted him to seek alternative legal advice. Counsel stated that he felt willing to
disclose only a limited amount of information as to why the defender had
withdrawn his instructions. There had
been no delay on his part. He had not
received the Form 30.2 notice. Counsel
was unable to comment on the interval which had elapsed between the fourth day
of the proof, on 21 October 2005,
and the by order hearing on 25 January
2006. Counsel did not know
why the defender had not instructed other Edinburgh
solicitors immediately upon withdrawing his instructions from Mowat Hall Dick. Counsel could not say whether it would be
necessary to take the defender's evidence on commission. Counsel said he was slow to criticise the
defender for not giving his present legal advisers fuller information. Tods Murray had been unable to recover any
background papers from Mowat Hall Dick. They
had examined the productions in the case, but not the notes of evidence. It would not be possible to precognosce the
other witnesses for the defender before 15
August 2006.
[13] As to the interests of the pursuer, counsel for the defender
stated that the pursuer was not founding on a continuing obligation to pay
money. She would be entitled to interest
at the judicial rate on any sum decerned for. Since the case had been part heard, some
preparation would have been done by the defender's previous solicitors. The defender was not seeking to sist the
action; he was able to instruct
solicitors without seeking legal aid; and
he was not slow to communicate instructions. Any prejudice to the pursuer was outweighed by
the disadvantage to the defender if the diet were not to be discharged. Counsel also stated that if the diet were to
be discharged, a further diet might be unnecessary.
[14] Opposing the motion, counsel for the pursuer pointed out that
the dates assigned for the continued proof had been identified at the by order
hearing on 25 January 2006
as the only dates in 2006 when the proof could proceed. The progress of the proof in October 2005 had
been slow. Little evidence had been
heard on the first day because time had been occupied with the defender's
motion for a commission and with the defender's counsel's seeking instructions
from the defender. Some 15 objections to
evidence had been stated and discussed in the course of the four days. There had been no developments since the
fourth day of the proof, 21 October
2005, apart from the by order hearing on 25 January 2006. The pursuer's legal advisers had been
bewildered by the defender's withdrawal of his instructions from Mowat Hall
Dick, because there appeared to be no reason for it. Counsel then gave the details of the service
of the Form 30.2 notice which I have narrated above. Counsel went on to submit that the pursuer
would be considerably prejudiced by any further delay. She was in financial difficulty. She had not received the monthly sums which
the parties had agreed were to assist her in regulating her affairs. The defender had attempted to link the present
action with an action he had raised against the pursuer in New
York. In April
2004 he had obtained in the Court of Session warrant for the arrestment and
inhibition of the pursuer's assets in Scotland
on the dependence of the New York
action. The arrestments had been
restricted to allow the release of £200,000, but that sum was now exhausted. The pursuer's solicitors were unable to
intimate a motion for recall of the arrestments, because neither Mowat Hall
Dick nor Tods Murray were now instructed with regard to that matter, and the
defender was not co-operating.
[15] I note that there is in process a letter to the Deputy
Principal Clerk of Session from Mowat Hall Dick dated 10 August 2006 (no. 21 of
process) stating that they had received intimation of a motion from the
pursuer's solicitors in respect of the petition for inhibition and arrestment,
and confirming that they had withdrawn from acting for the defender in respect
of all outstanding actions in the Court of Session including the petition
process.
[16] The pursuer's counsel handed up a copy of a letter to the
pursuer from her New York
attorney dated 9 August 2006
about the history of the action in New York.
The action is concerned with a heritable
property in New York known as The Peninsula at Premium Point which, said
counsel, is in the parties' joint names. Counsel stated that that property was now
worth $14,000,000, but since it was in the parties' joint names it was not
available to the pursuer as a source of funds. The defender, said counsel, had represented
that it was worth only $9,500,000. The
attorney's letter was, as counsel observed, in colourful language, but it
nevertheless made representations of fact which were relevant to the issue of
whether the diet should be discharged.
It stated in part:
"There is no
question that Plaintiff [the defender] has used various tactics to delay the New
York action. Plaintiff has continued to stall because the
action was commenced for the sole purpose of arresting and inhibiting your
assets in Scotland.
As you are aware, the longer he can
delay the progress of this action, the longer you are prejudiced in Scotland.
To follow are the many methods by which
Plaintiff has stalled:
1. The Court-ordered appraisal of the
subject property took substantial time to occur due to Plaintiff's failure to
jointly choose an appraiser. Plaintiff
first undervalued the property to get the arrestment and inhibition. An appraisal showing a greater value was
warranted to defend the New York
action and to prove that a full restraint order in Scotland
was not necessary.
2. Plaintiff is now using his third
attorney during the pendency of his action. He was first represented by Salans, then
Bleakley Platt, and now Robert Arenstein. Bleakley Platt's alleged inability to retrieve
the Plaintiff's file from Salans stalled the matter for months last spring and
early summer.
3. Plaintiff stalled by refusing to
respond to our discovery demands and confirm a deposition. He then moved for protective order relieving
him of his obligation to appear for a deposition. The Court denied Plaintiff's motion and
ordered that he appear for depositions by November 20, 2005.
4. On the eve of deposition, Plaintiff
sought leave to reargue his motion, citing health issues. The Court denied the motion and ordered that
he appear for deposition 3 days before trial. The Court directed that the Plaintiff file his
Note of Issue placing the matter on the trial calendar so that a trial date
would be set immediately. Plaintiff
failed to file the Note of Issue.
5. In hopes of preventing any further
stall tactics, we filed a Note of Issue with the Court, thereby stating that
the matter is ready for trial.
6. The Court scheduled the trial to
commence on March 9, 2006. Plaintiff then moved to remove the action from
the trial calendar and to stay the action. The trial has been stayed pending a decision
on these motions. A decision is expected
this month."
[17] The pursuer's counsel stated that the letter disclosed a
familiar pattern including changes of agency and the citation of health reasons
for failure to appear in court personally. The motion before the court in New
York was that the New York
action should not be heard until the present action was concluded. Counsel asked me to note the comparative
bargaining positions of the parties. The
defender was an exceptionally wealthy man. The value of the present case represented only
a tiny fraction of his wealth. At the
time of the hearing of the motion to take his evidence on commission in Paris
he had proposed to provide a private jet for the convenience of those
concerned. The pursuer, on the other
hand, was in financial difficulty.
[18] Finally, the pursuer's counsel moved for leave to amend the sum
sued for in the second conclusion from £720,000 to £1,020,000, and to make a
corresponding amendment to her averments of fact in article 3 of the
condescendence at page 11D-E of the closed record. The defender's counsel did not oppose the
motion for leave to amend, and I granted it.
[19] I decided to refuse the motion to discharge the diet. No reasons had been given for the delay
between 21 October 2005 and 25 January 2006; or for the defender's withdrawal of his
instructions from Mowat Hall Dick on the last day of term, 14 July 2006; or for his failure immediately to instruct
other solicitors when he knew or ought to have known that the continued diet
had been fixed for 15 August 2006. The
pursuer had raised the action as long ago as May 2004. It was clear that she would be prejudiced by
any further delay. In my view the delays
which had already occurred were lamentable enough. It would be a truly abysmal situation if the
pursuer, who had not been responsible for any delay, were to be obliged to wait
until a date in 2007 for the disposal of the action in the Outer House after
proof had been taken in two instalments more than a year apart. Counsel for the defender appeared to suggest
that such delay in the disposal of an action in the Outer House was not
unknown; but in my view, if that be so,
that is no ground for complacency. I
have not the slightest doubt that it is incumbent on the Court to insist on
adherence to dates that have been fixed after full discussion with counsel in
court, unless some compelling reason in the interests of justice is shown for
the discharge of the diet. No such
reason, in my opinion, had been demonstrated in the present case.
[20] Counsel for the defender moved for leave to reclaim. First, he submitted that the nature of the
prejudice to the pursuer's financial position had not been explained. That appeared to me to be a difficult
submission for the defender, who not only had ceased paying to the pursuer the
monthly sums which he had agreed were to be for her assistance in regulating
her personal affairs, but also had resorted to arrestment and inhibition which
had had the result of preventing her from deriving financial assistance from
her assets in Scotland.
[21] Secondly, counsel maintained, rather belatedly, that four days
would be available for the continued diet on 12, 13, 14 and 15 December 2006. Counsel for the pursuer reminded me that those
dates had been discussed at the by order hearing on 25 January 2006 and
had been discarded by agreement because the pursuer's counsel had already been
instructed for a two-week proof which included those dates.
[22] Finally, the defender's counsel submitted with perfect courtesy
that my decision was so irrational that no Lord Ordinary acting reasonably
could have reached it. There was perhaps
an air of desperation about this submission. I refused leave to reclaim.
The motion for decree by default
[23] When the continued diet of proof
was called before me on 15 August
2006 other counsel appeared as a courtesy on the defender's side of
the bar to intimate that Tods Murray had withdrawn from acting for him. They felt that they could not properly
represent him at the diet of proof. The
defender had been fully advised of the potential consequences of their
withdrawal. He was not present. Counsel referred me to a letter from Tods
Murray to the Deputy Principal Clerk dated 15 August 2006 which had been delivered to his office
that morning. Counsel referred in
particular to the third paragraph of the letter. Counsel then withdrew.
[24] The letter states:
"We write to advise that we have
withdrawn from acting on behalf of the defender in the above matter.
We are instructed to advise the
court that the reason for our withdrawal is that we are not able to properly
represent the defender at the continued diet of proof. We received instructions from him on 4th
August. Our motion to discharge the
continued proof diet was refused on 11th August. The papers have not been released by the
defender's previous agents. The
defender's witnesses are not available to attend the diet and, notwithstanding
the fact that the defender and his witnesses advised his previous agents of
their unavailability immediately following the fixing of he continued diet, we
are advised by the defender that the previous agents took no steps to seek
discharge of the diet or otherwise obtain the evidence of the defender's
witnesses.
We are also instructed to advise the
court that the defender has no desire to unnecessarily delay the conclusion of
these proceedings. He is not making an
attempt to avoid attending court. He has
always been willing to travel to Edinburgh
to give his evidence, or to do so at a Commission in France,
if his health does not permit him to travel. He remains so willing. His witnesses are also willing to attend
court, despite not being compellable. They
were in Edinburgh at the time of
the first proof diet, as they expected to be called in the course of that diet.
They remain willing to attend court, but
regrettably, as we have stated above, are not available to attend court for the
diet this week.
We confirm that we have advised the
defender about the potential consequences of our withdrawal and his failure to
attend the continued proof diet."
[25] I note that the letter confirms that the defender was aware of
the dates of the continued diet as soon as they were fixed, and gives no
reasons for the unavailability of the defender and his witnesses on those dates.
[26] After counsel withdrew I had the case called once more. There was no appearance by or on behalf of the
defender. Counsel for the pursuer then
moved for decree by default in terms of rule 20.1 of the Rules of the Court of
Session. She did not make an alternative
motion in terms of rule 30.2(1). Rule
20.1 provides, so far as material:
"(1) Without
prejudice to the power of the court to grant decree by default in other
circumstances, where a party fails to attend before the Lord Ordinary on the
calling of a case -
[ . . . ]
(c) for a
proof,
[ . . . ]
that party
shall be in default.
[ . . . ]
(4) Where a
defender is in default under paragraph (1), the court may grant decree by
default against him with expenses."
[27] Counsel submitted that the rule conferred on the judge a
discretion, and he must therefore consider all the circumstances and choose the
most appropriate course. That
proposition is vouched by the opinion of the First Division in Munro & Miller (Pakistan) Ltd v Wyvern Structures Ltd 1997 SC 1. In that case the pursuers' agents had
withdrawn from acting after their motion to discharge the diet of proof had
been refused, and no counsel appeared to represent the pursuers on the day of
the proof. The Lord Ordinary granted
decree of absolvitor. Refusing a
reclaiming motion, the Court referred to the history of the proceedings and
said (at page 2G-H):
"In these
circumstances, having regard to the way in which the pursuer had conducted the
proceedings, we are satisfied that the Lord Ordinary was entitled to reach the
view that the appropriate course for him to take was to grant the defenders'
motion for absolvitor."
At page 3G-I the Court said:
"[. . . ] r
20.1(2) [which is concerned with a case where a pursuer is in default] shows
that the court may grant decree by default if a party fails to attend when a
case calls for proof. As the terms of
the rule make clear, the judge has a discretion. He must therefore consider all the
circumstances and choose the most appropriate course. On some occasions, as for example where the
party fails to attend because the agents withdraw from acting on the morning of
the proof, it may be appropriate for the judge to ordain him to intimate
whether he intends to continue with the action. But in other cases the circumstances will be
such as to make it appropriate for the judge to proceed forthwith to grant
decree by default. We are satisfied that
this was such a case."
[28] In the present case counsel for the pursuer adverted to the
history of the proceedings which had been discussed at the hearing of the
motion to discharge the proof and briefly repeated her submissions about the
imbalance between the parties and the prejudice that delay would cause to the
pursuer. Counsel also made three
comments on the letter of 15 August
2006 from Tods Murray. First,
she commented on the assertion that the papers had not been released by the
defender's previous agents. She stated
that the latter agents had advised that the papers had been parcelled and ready
for dispatch on 7 August 2006
but there had been no request for them. Secondly,
counsel pointed out that the letter offered no explanation of the defender's
failure to appear. Thirdly, counsel
disagreed with the statement in the letter that all the defender's witnesses
had been in Edinburgh at the time
of the first diet of proof: only two of
them had been present.
[29] I was satisfied that the only appropriate course in the
circumstances was to grant decree by default. It appeared to me that in view of the history
of the defender's conduct of the litigation it was impossible to be satisfied
that he had any intention of proceeding with the proof. I refer to the absence of any explanation of
his alleged inability, and his witnesses' alleged inability, to appear in court
at the continued diet of proof. I also
refer to his unexplained withdrawal of his instructions from Mowat Hall Dick on
the last day of term. If, as the letter
of 15 August may suggest, he had taken exception to their failure to take steps
to seek discharge of the diet or to obtain the witnesses' evidence, such
criticism would have been misplaced in view of the fact that the diet had been
specially fixed by agreement and no reason had been given for inability to
attend. I also refer to the defender's unexplained
failure immediately to instruct other agents upon the withdrawal of his
instructions from Mowat Hall Dick when he knew, as the letter demonstrates,
that the continued diet had been fixed to commence on 15 August. I considered whether to order intimation once
again in terms of rule 30.2, notwithstanding the absence of any alternative
motion to that effect, but I decided not to do so because that would in effect
have given the defender the equivalent of the discharge which I had refused on
11 August (see Munro & Miller
(Pakistan) Ltd at page 2G). As I
have already indicated, I was satisfied that the pursuer would be seriously
prejudiced by any further delay and that that prejudice decisively outweighed
any disadvantage that might be suffered by the defender.
[30] I therefore granted decree by default against the defender in
terms of the conclusions of the summons, as amended. Accordingly I granted declarator in terms of
the first conclusion and decerned against the defender in terms of the second
conclusion for payment to the pursuer of the sum of £1,020,000. I awarded interest as follows: (a) £37,100, representing interest on the sum
of £210,000 at the rate of 8 per cent per year from mid-May 2004 until
31 July 2006; (b) £70,200,
representing interest on the sum of £810,000 at the rate of 4 per cent per
year from mid-May 2004 until 31 July 2006; and (c) interest on the sum of £1,020,000 at
the rate of 8 per cent per year from 1 August 2006 until payment.
Expenses
[31] I also found the defender liable to the pursuer in expenses
insofar as not already dealt with. Counsel
moved for the allowance of an additional fee in terms of rule 42.14(3)(a), (b),
(c), (d), (e) and (f). As to factor (a),
counsel founded on the difficulty and novelty of the questions raised and
referred to the inter-relationship of this action with other proceedings
between the parties, especially the French action relating to the château. As to (b), counsel founded on the skill and
specialised knowledge required of the pursuer's solicitors and referred to the
fact that it had been necessary for them to liaise with lawyers in France and
to read and translate a number of documents in French. One member of the firm had had an expert
knowledge of French. As to (c), the
number and importance of the documents prepared and pursued was apparent from
an inspection of the documentary productions lodged in court. As to (d), the circumstances of the cause
involved the solicitors in dealing with lawyers in France and the United
States of America, and with an anxious
client. As to (e), the importance of the
cause and the subject-matter of it to the client were self-evident: counsel referred once again to the pursuer's
financial difficulties. As to (f), the
amount of money involved in the cause appeared from the sums sued and decerned
for.
[32] In my opinion those submissions were well-founded. I therefore took into account the factors
relied on and allowed an additional fee in terms of rule 42.14(3)(a), (b), (c),
(d), (e) and (f).
