Helensburgh castle residents fail to challenge ejection decree obtained by trustee in sequestration

George Amil and MV Overwaele, the defenders to an action by the second defender’s trustee in sequestration George Lafferty, argued that the Lord Ordinary had breached their human rights by granting decree in their absence. Both had submitted medical notes that they claimed justified their absence from the proof hearing.

The appeal was heard by Lord Woolman, Lord Pentland, and Lord Doherty. The defenders represented themselves, while the pursuer and respondent was represented by Forsyth, advocate.

Unsigned certificates

The defenders had occupied Knockderry Castle in Helensburgh alongside members of the first defender’s family. In 2000, the second defender, who owned the castle, was sequestrated. She conveyed the subjects to her brother in 2009 via disposition for “certain good and onerous causes” while retaining a liferent interest.

The respondent became her trustee in sequestration in 2017. It was his position that the conveyance of the subjects to the first defender was intended to frustrate him as trustee from possessing and selling them, and that the second defender had no title to do so. In 2018, he therefore raised an action seeking to prevent the defenders from dealing with the subjects and to eject them.

A proof was fixed for 30 March 2021 at which neither of the defenders appeared. They both produced unsigned medical certificates to justify their absence, however the Lord Ordinary granted decree by default on the basis that they had failed without reasonable excuse to attend or be represented at the hearing.

At a pre-proof hearing in February 2021, the defenders, who had insisted on an in-person hearing following several pandemic-related delays in the case’s procedural history, indicated that they would attend the proof in March. The second defender produced a GP certificate which did not identify a health issue that would have prevented her from attending court, and the Lord Ordinary informed her that she would require an appropriate medical certificate.

It was submitted for the pursuer that neither of the defenders’ certificates, one of which was an e-mail from a GP surgery the day before the hearing and the other a Statement of Fitness for Work, were signed on soul and conscience. The Lord Ordinary was entitled not to exercise his discretion in this matter, as the conditions reported were either self-reported or did not relate to fitness to attend court, and his approach could not be faulted.

The defenders submitted that the Lord Ordinary ought to have given them the opportunity to provide more detail about their respective medical conditions or to establish their defence to the action. They jointly contended that the decision was unfair, unreasonable, and breached their human rights. The second defender further submitted that it was inappropriate for him to make enquiries via his clerk with her GP practice relative to the certificate she submitted.

A legal meeting

The opinion of the court was delivered by Lord Woolman. Addressing the certificate produced by the first defender, he said: “The Lord Ordinary attached no weight to the certificate which the first defender tendered. In our view that was a course he was (at least) entitled to take in the circumstances. The certificate was not a soul and conscience certificate. More fundamentally, it did not address the first defender’s fitness or otherwise to attend the proof. It addressed a different matter, his fitness for work.”

He continued: “Moreover, the certificate was obtained and intimated on the eve of a proof, in circumstances where the first defender had not previously suggested that he suffered from a medical condition which would make him unable to attend court and where the defenders had a recent history of having sought to have the proof discharged.”

Turning to the second defender’s note, Lord Woolman said: “The letter from the GP was not a soul and conscience certificate. More importantly, the GP’s observations and conclusions were reliant upon the second defender’s self-reporting of her symptoms. The Lord Ordinary was not prepared to rely on that self-reporting.”

He went on to say: “She had not disclosed to the GP that the proof was to commence on 30 March. All that he was told was that she had ‘a legal meeting’ in Edinburgh. In our opinion, on the basis of the material which was before him it was at least open to the Lord Ordinary to decide that he was not satisfied that the second defender was unfit to attend the proof.”

Lord Woolman concluded: “The Lord Ordinary carefully reviewed all of the relevant circumstances, including the terms of the certificates, their timing, and he did so against the background of the whole procedural history of delay and procrastination on the part of the defenders. He did not take into account irrelevant considerations. He also had due regard to the interests of the pursuer and the need to bring the case to a conclusion. In our view, he was certainly entitled to grant decree by default.”

For these reasons, the reclaiming motion was refused. In a postscript on the defences, Lord Woolman added: “Of the defences pled the only one of any potential merit is the first defender’s defence that he acquired the property in good faith and for value. However, to be in good faith, the first defender would have to have been unaware that the sequestration had occurred. That is a highly unlikely scenario in the circumstances.”