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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hull v Campbell [2011] ScotCS CSOH_24 (02 February 2011)
URL: http://www.bailii.org/scot/cases/ScotCS/2011/2011CSOH24.html
Cite as: 2011 SCLR 598, [2011] ScotCS CSOH_24, 2011 GWD 5-139, [2011] CSOH 24, 2011 SLT 881

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OUTER HOUSE, COURT OF SESSION

[2011] CSOH 24

    

OPINION OF LORD TURNBULL

in the cause

BERTIE WALTER HULL

Pursuer;

against

JAMES WILLIAM THOMAS CAMPBELL

Defender:

ннннннннннннннннн________________

Counsel for Pursuer: Bartos, Campbell Smith WS

Counsel for Defender: Devlin, Brodies LLP

Counsel for the Lord Advocate as Minuter: Miss Poole

2 February 2011

Introduction

[1] This is an action which arose out of a remarkable set of facts, concerns a remedy unheard of in modern times and concluded in quite surprising circumstances, which, with hindsight, perhaps demonstrated an attitude in keeping with the whole history of the dispute between the parties to this case.


Background

[2] In June of 1992 the pursuer obtained decree against the defender in the Sheriff Court at Ayr in respect of a debt of г9,600. By 1998 no payment of any of this debt had been made and the pursuer raised an action of adjudication in the Court of Session. By that time the accumulated sum, comprising principal debt, interest and expenses had risen to г18,483.80. That action concluded on 3 July 1998 when this Court pronounced a decree by which the defender's heritable property was adjudged to the pursuer. The ten year reversionary period known as "the legal" then duly expired without a single penny being paid by the defender in reduction of his debt and in August of 2008 an action for declarator of expiry of the legal, and that the defender's property as adjudged should belong to the pursuer was raised. Defences were lodged to that action, the Lord Advocate entered the proceedings by way of Minute in terms of Rule of Court 82.4 and the action eventually called for proof before me in October of 2010. By this stage the agreed sum due by the defender, in terms of the original decree and interest, had grown to г52,272.87. The defender had still refused to pay any of his debt and had made no offer to make restitution in any form. The defender's property consisted of his one half pro indiviso share of a house at 51 Hillfoot Road, Ayr, where he lived with his wife. It was agreed that the market value of that house was approximately г130,000 and that it was now free of mortgage and standard security. Although not crucial to the arguments before me, the original debt due by the defender appeared to have become obscured in the mists of time, as no one who appeared before me was aware of its nature or of the circumstances in which it arose.


The Nature of The Action

[3] The present action is the concluding stage of a now very unusual process of diligence known as adjudication. Following on the grant of a decree for payment a creditor may raise an action for adjudication, which is an action directed at the debtor's specified heritable property. A decree of adjudication operates as a judicial heritable security over the subjects adjudged and prevents the owner from disposing of them in any fashion. The debtor may redeem the security at any time but if after ten years the debt is still unpaid the creditor can convert his security into a title to the property by an action of "expiry of the legal". A decree of declarator of expiry of the legal is understood to have the effect of conveying the subjects adjudged to the creditor. It is granted under the authority of the Diligence Act of 1672, as amended by the Lands Transference (Scotland) Act 1847, the Titles to Land Consolidation (Scotland) Act 1868 and the Statute Law Revision (Scotland) Act 1906. In setting out the operation of the diligence the Act of 1672 refers back to the Diligence Act of 1661 and the history of the process can be traced back through various other legislative pronouncements to an Act of 1469. The diligence of adjudication will be abolished when sections 79 and 81 of the Bankruptcy and Diligence etc. (Scotland) Act 2007 are brought into force.

Pursuer's Submissions

[4] Mr Bartos for the pursuer took me through an interesting historical examination of the development of the diligence of adjudication, with the purpose of demonstrating the effect of its use. He explained how the diligence could be traced back at least as far as an Act of 1469 which provided a method whereby a creditor could recover a debt owed by a debtor whose only asset was land. That act permitted a sheriff to sell the debtor's land to the value of the debt due and remit payment to the creditor. If no purchaser was found the sheriff, with the assistance of thirteen members of the shire, was entitled to appraise the debtor's land and to assign that land, up to the value of the debt, to the creditor. In either case though the debtor retained a power of redemption which entitled him to regain title to the land by repaying the debt due within a period of seven years. Counsel took me to the Diligence Acts of 1621 and 1661 in order to demonstrate how this process of apprising (as it was termed, or sometimes comprising) came to be further regulated and formulated, with two aspects of the 1661 Act being of particular importance in his analysis. The first matter to note was that the legal period during which the debtor could redeem his right to land apprised was extended to ten years. The second was the effect of failure to redeem during this period. According to this provision, in the event of failure to redeem during this period the consequence was that the whole of the debtor's lands (as apprised) would pertain to the creditor irredeemably.

[5] Counsel went on to explain how the diligence of apprising was replaced by adjudication by the Diligence Act of 1672. That Act introduced two different forms of adjudication. The first, which came to be known as special adjudication, permitted the Court to adjudge to the creditor such part of the debtor's land as would be equal to the sum due, with interest, along with a fifth part more, which provision was included to compensate the creditor for the inconvenience of having to take land instead of money. Such land as adjudged would then become the irredeemable property of the creditor unless the debt was redeemed within a period of five years. In order to facilitate the exercise by the creditor of his right to use of the land the Act intended that the debtor should deliver up his title deeds to the adjudger. However the Act also provided an alternative, known as general adjudication, in circumstances where the debtor declined to deliver his deeds. It in effect provided the debtor with a choice. In the event of the debtor declining to deliver up his title deeds the creditor was entitled to adjudge all land and heritage belonging to the debtor under a reversion of ten years and under the same terms and conditions as under the Act of 1661, in other words as he would have been using the diligence of apprising.

[6] The effect of the reference back to the former process of apprising in the creation of general adjudication, according to counsel's submission, was that adjudication followed by expiry of the legal period without redemption of the debt would entitle the creditor to a decree of declarator of expiry of the legal. The effect of this would be to give the creditor irredeemable right to all of the debtor's property as adjudged, regardless of any difference between the value of the land adjudged compared with the extent of the debt accrued. This, on counsel's analysis, was the intention of the Act, which deliberately introduced a penalty on a debtor who chose not to deliver up the title deeds to the lands under special adjudication. That penalty being that he lost all of his property, if the longer reversionary period should expire without repayment of the debt. In support of his interpretation of the statutory provisions Mr Bartos referred me to the cases of Livingston v Goodlet 1704 Morrison 73, Campbell v Scotland 1794 Morrison 321 and Ormiston v Hill a decision of the First Division of the Court of Session (1809 Fac. Coll. 155)

[7] Having set out this position Mr Bartos then addressed the question of whether or not a decree of declarator as sought would be incompatible with the defender's rights as provided for by Article 1 of Protocol 1 to the European Convention on Human Rights, which is in the following terms:

"Every natural person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."

[8] Although he acknowledged that the defender's rights in terms of the Protocol were engaged by the use of this diligence, the first submission advanced by Mr Bartos was, that on the facts of the present case, the defender's rights would not be infringed by a decree being granted in the terms sought. He argued that the order which he sought would be an order provided for by law, would be an order which was granted in order to pursue a legitimate aim, namely the recovery of a debt admittedly due, and would be an order which did not constitute a disproportionate and excessive burden on the defender. The first two propositions were not in contention and in order to support the third counsel relied on the amount of time during which the defender had enjoyed the use of his property and his apparent failure to take any steps to reduce the debt during that period. He also relied upon the argument that further cost would likely be incurred by the pursuer in converting his right under an order pronounced by the court into money. It was submitted that he would require to raise an action of division and sale, since the defender's wife owned the remaining half share in the property concerned. If this action was defended the costs of litigation might be up to six thousand pounds, to which the expenses of sale would then require to be added. There would also be a significant period between decree and eventual sale which would result in a period of lost interest for the pursuer. On this analysis it was argued that these expenses, when added to the accrued sum and an estimate for lost interest over a period of a year, would reach a sum more or less equal to the value of the defender's share in the property adjudged. On this basis it was submitted that the fair balance between the protection of the defender's interest to enjoy his property and the public interest to enable debts to be recovered, which was inherent in Article 1 of Protocol 1, would not be disturbed by granting decree as sought. On this argument there would be no incompatibility between the remedy sought and the rights identified in the Protocol. Counsel sought to prey in aid the decision of the European Court of Human Rights in Jahn v Germany (2006) 42 EHRR 49

[9] Mr Bartos also developed a subsidiary argument which he submitted would apply if I was not with him in his first submission. He conceded that on the basis that Article 1 of Protocol 1 was engaged it would be what has become known as "Rule 2" of the Article which applied namely that:

"No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law".

[10] On this basis, as counsel acknowledged, the relevant jurisprudence tended to indicate that an order which deprived an individual of property rights would be incompatible with Article 1 of Protocol 1 unless it also provided for relevant compensation. If I was of the view that to grant decree as sought, without any form of compensation, would be incompatible with the defender's rights then section 6(1) of the Human Rights Act 1998 would appear to prevent the Court from making the order sought by the pursuer. That subsection reads as follows:

"(1) It is unlawful for a public authority to act in a way which is incompatible with a convention right"

[11] However the submission presented was that it was a fundamental feature of the diligence of adjudication that after the expiry of the legal period of redemption the creditor would be entitled to take title to the whole property adjudged. This had been the intention of the legislature and no discretion was available to the Court to do other than grant decree of declarator of expiry of the legal. This being the purpose of the Act the scheme of the legislation did not provide any power to make an order to reflect any excessive imbalance between the subjects adjudged and the level of the debt due. On this basis it would not be possible to read or give effect to the provisions of the 1672 Act, incorporating the aspects of the previous law which it did, in a way which was compatible with Article 1 of Protocol 1, since to do so would be to create a whole new scheme which ran contrary to a fundamental feature of the applicable statute. In these circumstances counsel submitted that the primary legislation left the Court with no alternative but to grant decree with the effect claimed for. As a consequence section 6(1) of the Human Rights Act was disapplied by section 6(2)(b) of the same Act which reads as follows:

"(2) Subsection (1) does not apply if -

(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect to in a way which is compatible with the Convention rights, the authority was acting so as to give effect to those provisions."

Defender's Submissions

[12] Mr Devlin for the defender recognised that the pursuer was entitled to a remedy which enabled him to enforce recovery of the debt due. He also acknowledged that, on the face of matters, the defender's conduct in apparently failing to make any effort to repay any of his debt over the many years which it had been outstanding was reprehensible. In his submissions Mr Devlin considered whether it was correct to say that the Court had no discretion but to pronounce a decree the effect of which would be to deprive a debtor of property with a value in excess of the debt due without any compensation. His submission was that the Court did have a discretion in the form of order which it granted and that I should pronounce a decree of declarator of expiry of the legal but adhibit to that decree a requirement that the creditor should account to the defender for any excess over and above the accrued sum due after expenses of sale had been taken into account. He did not accept that the costs of any defended action of division and sale would fall to be deducted from any balance due to the debtor, since the costs of a successful action would fall on the party defending it.

[13] Mr Devlin submitted that in seeking to apply Acts of the old Scottish Parliament the Court ought to adopt a liberal construction arising out of the spirit of the law. He submitted that the spirit of the 1672 Act and the mischief which it was designed to address could be found in the preamble to the statute. Furthermore, he argued that a consideration of the views of writers and commentators, both institutional and modern, would support his underlying contention, namely that the Court had a discretion as to the form of interlocutor which it pronounced. Accordingly his principal submission was that there was no question of the Court having to make an order which was incompatible with the defender's rights as set out in Article 1 of Protocol 1. If this submission was not accepted then Mr Devlin argued that the provisions of section 3 of the Human Rights Act 1998 would apply and the Court would need to consider whether the relevant legislation could be read or given effect to in a manner which was compatible with any relevant right held by the defender. If this was necessary then counsel's submission was that it would be easy to do so.

[14] In advancing his primary submission counsel took me through an informative history of the use and development of the diligence provided by Baron Hume in Volume 4 of his Lectures. His purpose in doing so was to demonstrate how the use of apprisings had led to widespread abuse and dissatisfaction and to highlight the particular mischiefs which were in mind when this process was replaced in statute by that of adjudication. The preamble to the 1672 Act sets out a variety of concerns which had arisen out of the use of apprisings. The first mentioned was (with the language adjusted):

"Considering how far Comprisings have departed from the first design of the Legislators, who never did intend that opulent and great Estates should be carried away for inconsiderable sums,"

[15] Mr Devlin took me through a history of the statutory developments which had affected the diligence of adjudication since its introduction in the 1672 Act. In this exercise, and drawing on Baron Hume's Lectures, he demonstrated how the process of general adjudication, by which a right in security was obtained over the debtor's land regardless of its value by comparison with the debt due, was originally created as a fall back position for the creditor and yet came to be the norm. So little use was made of special adjudications that they fell in disuse completely and were abolished by the Statute Law Revision (Scotland) Act 1906.

[16] The abolition of special adjudications in 1906 was an important step, since from that point on the debtor had no choice. The creditor would always be entitled to adjudge his whole property, regardless of the value of the debt and regardless of whether the debtor was in fact prepared to deliver title to land equating to the value of the debt. If the pursuer's submission was correct, Mr Devlin argued, then the effect of this amendment, more than two hundred years after the introduction of the diligence of adjudication, was that the same sort of result could follow as the Act of 1672 had expressly sought to remedy. This fact alone he suggested vouched the proposition that the Court had a discretion in the way in which it gave effect to the creditor's right and suggested that Parliament must have assumed the existence of such a discretion in 1906. Counsel rejected the submission that the Act of 1672 had created a penalty of the type suggested by counsel for the pursuer and in turn suggested that the penalty which the Act created was that the debtor's right in the land was extinguished. That was the penalty for failing to pay the debt due but that did not mean that there was an intention to provide the creditor with a benefit over and above the value of the debt. There was he submitted no support to be found for the pursuer's contention. For further assistance in understanding the effect and development of the diligence counsel referred me to Professor Gretton's work on The Law of Inhibition and Adjudication, the Scottish Law Commission's Discussion Paper Number 78 on Adjudication for Debt, published in November 1988, their Report on Diligence (Number 183) submitted in 2001, Graham Stewart on Diligence and Parker's Notes on the Diligence of Adjudication.

[17] Mr Devlin then went on to address a secondary submission based on the defender's rights in his property as guaranteed by Article 1 of Protocol 1 of the European Convention on Human Rights. His argument was that to give effect to the pursuer's submission concerning the interpretation of the 1672 Act would mean that the defender's rights in his property would be extinguished without providing him with any compensation to reflect the difference in value between the debt due and the agreed approximate value of his one half share in the property concerned. That difference might amount to something in the region of г10,000, which, he suggested, was a significant sum for someone in the defender's circumstances. This would constitute an infringement of his rights in an unjustifiable manner and would bring into play the terms of sections 3 and 6 of the Human Rights Act 1998. However the Court's obligation to read and give effect to the 1672 Act in a way which would be compatible with the defender's Convention rights would be satisfied by the adhibiting of an obligation to account of the sort he suggested.

[19] In advancing this argument counsel submitted that the Diligence Act operated as a deprivation of ownership, thus engaging the second rule of Article 1 of Protocol 1, as it was explained in Sporrong and Lonnroth v Sweden (1982) 5 E.H.R.R. 35. He submitted that the primary criterion for establishing a deprivation of property is the extinction of all of the legal rights of the owner by operation of the law or an exercise of a legal power to the same effect - Lithgow v United Kingdom (1986) 8 EHRR 329. There was no dispute that this would be the result of decree being granted. In such circumstances he submitted that the general rule, as vouched by the authorities referred to, was that such an outcome would normally constitute a disproportionate interference which could not be considered justifiable under Article 1 unless there was payment of an amount reasonably related to the value of the property, or in this case to the balance of value over debt. There were he submitted no special circumstances warranting departure from this principle, nor could it be said that the Diligence Act of 1672 pursued a public interest of the type which would allow derivation from the general rule (such as was described in Scordino v Italy (2007) 45 E.H.R.R. 207). In presenting these arguments counsel for the defender sought to distinguish the facts and circumstances of the present case from those present in the case of JA Pye (Oxford) v United Kingdom (2008) 46 EHRR 45.

Submissions on Behalf of The Lord Advocate

[20] On behalf of the Lord Advocate Miss Poole in general supported Mr Devlin's submissions on the existence of a discretion available to the Court in applying the provisions of the 1672 Act. She also resisted the submission advanced by counsel for the pursuer that the 1672 Act was incompatible with the defender's rights under Article 1 of Protocol 1 and could not be read or given effect to in a manner which was compatible with those rights. In presenting her submissions on these matters Miss Poole also took me through a careful and helpful analysis of both the relevant legislation and the underlying principles of interpretation. The principal distinction between the approach taken by Miss Poole and that taken by Mr Devlin was that, on Miss Poole's analysis, if the use of the diligence did engage any aspect of the defender's rights as guaranteed by Article 1 of Protocol 1, then it was the third rather than the second rule of the Protocol which was engaged. In other words that the diligence operated as a control of use of property, with the consequence that the availability and extent of any compensation might be of less importance in considering whether any interference with the defender's protected property right was contrary to the Convention. For this analysis Miss Poole relied upon the case of JA Pye.

[21] In summary, Miss Poole's submissions were that there was no incompatibility between the operation of the legislation and the defender's rights in terms of Article 1 of Protocol 1, since there was no support for the pursuer's contention as to the absence of a discretionary power on the Court's part to remedy any windfall obtained by virtue of decree being granted. Secondly, and in any event, the terms of section 3 of the Human Rights Act impose on the Court a far reaching obligation to give effect to the legislation in a manner which was compatible with the defender's rights. Miss Poole submitted that there were a number of options open to the Court to achieve this end without undermining any fundamental feature of the statutory scheme of adjudication. Thirdly, she argued that since it was accepted that the terms of the Diligence Act of 1672 provided for a diligence which was lawful and pursued a legitimate aim in the public interest the only question was whether the provisions achieved a fair balance between the demands of the general interests of the community and the requirements of the protection of the individual's fundamental rights. In this context if I were to treat the case as engaging Rule 2 she submitted that the taking of property would only be considered a disproportionate interference if there was not payment of an amount "reasonably related to its value" - JA Pye paragraph 54. Since the debt would be extinguished this requirement could be said to be met in the circumstances of the present case. If I were to treat the case as falling within Rule 3 then the European case law on the need for compensation would not be directly applicable (JA Pye paragraph 79) and the state would be entitled to a wide margin of appreciation in the manner in which it implemented legislation designed to enforce social and policy considerations (such as debt recovery). In such circumstances, given that the legislation was designed to promote a legitimate aim (payment of debt) by controlling the use of land, a fair balance between the respective interests would be present without the need for any further compensation being payable to the defender. In either case she also submitted that the particular features of the procedure of adjudication required to be kept in mind, including the consequences which flowed from the fact that a ten year period had to elapse before the security right could be converted and the various procedural protections which existed to protect the debtor's interests.

Discussion

[22] In advancing his submissions Mr Bartos relied upon a strict interpretation of a part of a statute pronounced in 1661 as incorporated by the terms of the Diligence Act of 1672. In terms of judicial support for his interpretation he relied principally upon a passage in the case of Livingston v Goodlet, decided in 1704, and which dealt with the now abolished diligence of apprising, in which the Court said that an apprising would carry the whole of the land apprised to the creditor if any of the debt remained outstanding at the expiry of the legal, no matter what the difference was between the sum due and the value of the lands apprised. Since the effect of the statute of 1672 was that general adjudication could be used by a creditor in the same manner as he might have used the diligence of apprising, it was said that the case of Livingston v Goodlet remained a good authority on the effect of the use of the diligence of adjudication.

[23] The first difficulty for this line of argument is that it is clear from Baron Hume's Lectures that the diligence of apprising was subject to much misuse and came to be recognised as an unsatisfactory legal process. The preamble to the Act of 1672 itself sets out that its purpose was to rectify the manner in which apprisings had come to deviate from the intention of the original legislators. One of the examples of such deviation which is given in the preamble is that opulent and great estates could be carried away for inconsiderable sums. On the pursuer's argument, in a case where nine tenths of a debt had been repaid during the period of the legal, the whole of the debtor's property as adjudged would become the irredeemable property of the creditor, no matter what the difference in value between that property and the remaining debt, and without any obligation to account for the excess. That would appear to me to be an outcome which would be inconsistent with one of the stated principles of the 1672 Act. Since the introduction of the diligence of adjudication there has been no reported case in which the Court has been asked to consider granting decree of declarator of expiry of the legal despite a difference in the value of the debt as compared to the adjudged property. Accordingly there is no authoritative guidance as to what the Court would or could do in such circumstances. The pursuer's contention that it could do nothing other than grant decree, with the effect described, is inconsistent with the Court's underlying obligation to do justice to the parties before it and is not supported by any authority. Even the report in the case of Livingston v Goodlet itself, whilst stating in one sentence that it was not in the power of the Court to remedy the carrying away of an estate by an apprising for a small sum, refers in the very next sentence to the Court having "in such odious cases modified exorbitant penalties to hinder estates from being swallowed up by such apprisings". This would seem to be an acknowledgement of some sort of discretionary power being exercised in suitable circumstances. An indication that judicial discretion in relation to the application of the Diligence Acts had been developed by 1790 can be seen in Campbell v Scotland, where the Court pointed out that although the original intention of the legislature in enacting the Acts of 1661 and 1672 was that the expiry of the legal should operate as a matter of law, the Court had come to interpret the legislation in a more equitable fashion "by which parties are allowed to take as little advantage of one another as possible" (at page 323).

[24] It is extremely difficult at this remove to understand clearly the detailed meaning of such old reports, written as they were in the language of the time and in a style which is quite different from that to which modern lawyers are accustomed. However the question posed by the circumstances of this case has been recognised and considered by other writers and commentators. In addressing declarator of expiry of the legal at page 656 of Graham Stewart on Diligence the author states:

"But a substantial portion of the debt must be due, otherwise he will not be entitled to decree - "de minimis non curat praetor".

In support of this proposition the author cites both Stair and Erskine. In his article on Diligence in the Stair Encyclopaedia, at paragraph 204, Professor Gretton states:

"The effect of the decree on the debt is unclear. In equity the debt should be discharged to the extent that the adjudger is lucratus by the decree, and if the value of the subjects is greater than the debt the debtor should, in equity, be entitled to be paid the value of the excess. But there is no authority".

The Scottish Law Commission's Report on Diligence No 183 published in 2001 is particularly illuminating. The Commissioners responsible included the present Lord Justice Clerk and a most eminent group of academics. At paragraph 2.6 they state the following:

"But there appears to be no rule requiring the adjudger to account to the debtor for the value of the property. The absence of such a rule is remarkable. The outcome is that foreclosure does not diminish the debt, and in effect the diligence gives the property to the adjudger for nothing. It is difficult to accept that the law can really be so inequitable and we have traced no modern authority on the point. The law on this matter is at best very uncertain and at worst harsh to the debtor almost beyond belief".

As Mr Devlin put it, one could read this as a statement by the Scottish Law Commission that they just did not accept that this could be the law.

[25] Drawing matters together then, the position appears to me to be this. Historically the diligence of apprising may well have had the effect of carrying the whole of the subjects apprised to the creditor, regardless of the difference between the value of the subjects and the debt then due. Whether or not such an outcome would prevent the debtor from separately seeking equitable relief from the Court is not clear. There is a hint of some form of relief being available in what was said in Livingston v Goodlet. In Baron Hume's Lectures at page 416, in explaining the iniquities which arose from the use of apprisings, a further hint of such a discretion appears when he states:

"From time to time, the grievance was complained of; and the Court of Session, as far as depended upon them and their decisions, did their endeavour to give redress and to palliate the mischief. Under one pretence or another the unconscientious creditor was able, however, to elude their good intentions, and continued, effectually, to attain his object of enriching himself at the expense of his unfortunate debtor."

[26] The diligence of apprising was abolished by the Act of 1672 with the stated intention of remedying certain of the unfair consequences of the use of the previous diligence. The statute itself declares that the purpose of replacing apprising with adjudication was to secure equally the rights of both debtors and creditors. One of the principal complaints about the process of apprising was that whilst initially the extent of land apprised was restricted to the extent of the debt due, this became a more and more lax procedure. Latterly the position seems to have been that all of the debtor's land could be apprised with no real attempt being made to link the diligence to the value of the debt. According to Baron Hume this led to the need for a fundamental alteration to the structure of this part of the law. With this in mind he describes the Act of 1672 as follows:

"...with the view of reforming the matter from the bottom, and reconciling the discordant interests of the several parties, the Legislature at the suggestion of Lord Stair took order for an entire new and more regular course of proceedings, in which it seemed probable, that most of the iniquities, which had hitherto been complained of, might be avoided."

The result of following the interpretation contended for by the pursuer would be that despite the concerns which brought about the reform, as described by Hume, and despite the intention of the Act as stated in the preamble, the worst of the iniquities of the previous system of apprising would be preserved. I find this an unattractive proposition.

[27] There is no authority on the question of what powers the Court may or may not exercise in granting decree for declarator of expiry of the legal based on the diligence of adjudication. The statute is silent on the point and Livingston v Goodlet does not assist, other than to suggest that there has always been a vague discretionary power to remedy unfairness. Other historical indications of the availability of a discretionary power to prevent unfairness can be detected and all modern writers have recognised the unfairness of the interpretation as contended for by the pursuer. I agree with Mr Devlin that when the Court comes to interpret old statutes it should seek to implement the spirit of the law and should not find itself confined by a literal application. Authority for this approach is found in the Stair Society's Introductory Survey of the Sources and Literature of Scots Law at page 10, and in the cases there cited. In light of the history of the legislation, as I have summarised above, this sort of approach would lead me to conclude that Mr Bartos cannot be correct in contending that the Court has no discretion and in asserting that the Act of 1672 deliberately introduced a penalty of the sort he described.

[28] For these reasons I do not accept the notion that the Court is and always has been powerless to do anything other than grant a decree which is capable of bringing about a most unjust result. Nor do I see why a discretionary power to prevent unfairness should be limited to circumstances in which the value of the subjects adjudged far exceeded the debt accrued. The diligence of adjudication may well be unsatisfactory in various respects but the creditor is in the end entitled to interest on the debt as accrued over the reversionary period. In the present case that interest has run at a high level. The diligence provides a process through which a creditor can recover his debt. To that extent it is a just process. There would be no justice though in a system which enabled a creditor to recover more than the debt due plus interest. Insofar as the Act of 1672 is said to be penal, the penalty is not that the debtor has no right of recompense or relief. That would be a penalty which could vary illogically from case to case. Rather, as Mr Devlin contended, the penalty is that the debtor is deprived of his right to the subjects. Accordingly I would have been prepared to pronounce decree of declarator of expiry of the legal, as contended for by the pursuer, but I would have adhibited a requirement that the pursuer account to the defender for any excess over the agreed accumulated sum plus reasonable expenses of sale. I would have felt entitled to pronounce such a decree in terms of the legislation as it is framed and as guided by what authorities and other sources of assistance are available.

[29] Over and above these considerations the defender's rights in terms of Article 1 of Protocol 1 are engaged by the use of this diligence. I do not accept the pursuer's contention that the value of the defender's one half share in his matrimonial home is broadly equal to the debt due. For one thing it would not be correct to include the costs of an action of division and sale over which the defender could have no control. These costs would fall on the defender's wife should she unsuccessfully contest such an action. It seemed to me, on the basis of the cases cited, that it would be correct to see this as a case in which Rule 2 of Article 1 applied. The case of JA Pye can be sufficiently distinguished on its facts and circumstances. I agree with Mr Devlin that the balance between the agreed value of the defender's property right and the debt due ought to be viewed as a substantial sum. Nor are there any exceptional circumstances, such as were present in the case of Jahn v Germany, which would enable me to conclude that the lack of compensation did not upset the balance of rights inherent in Article 1 of the Protocol. In these circumstances the Court would be acting in a manner which was incompatible with the defender's rights if it granted a decree which had the effect of depriving him of his rights in his property without providing compensation for the balance over and above the debt.

[30] Accordingly, had I agreed with the pursuer that the statute left the Court with no discretion concerning the manner in which it granted decree in an action such as this, then I would have had to consider the terms of section 3 of The Human Rights Act 1998. In these circumstances I would have concluded that I could pronounce a decree in the same terms as I have previously indicated. To do so would not interfere with any fundamental feature of the scheme of diligence set out in the 1672 Act. Drawing on Baron Hume's Lectures one sees that the scheme of the Act was to provide a fair method of securing the payment of debt. It did not have a further fundamental feature of disadvantaging the debtor to any greater extent. Contrary to the pursuer's submissions therefore it would not go against the grain of the Act to require the pursuer to account to the defender for any excess value obtained. Accordingly, by requiring the pursuer to account to the defender, the defender's rights in terms of Article 1 of Protocol 1 of the European Convention on Human Rights would be protected.

[31] Having explained my assessment of the various submissions presented I should return to the surprising turn of events which occurred at the very concluding stage of this litigation, which began nearly twenty years ago with the decree for debt taken in Ayr Sheriff Court. Having heard the submissions of counsel for the defender and those on behalf of the Lord Advocate, Mr Bartos asked for permission to present some submissions by way of reply. In those submissions he referred to certain of the points which had been made against his argument and then went on to explain that, on the instructions of the pursuer, if I was not prepared to grant decree in the terms argued for by him then his motion was that I should grant decree of dismissal or decree of absolvitor, at my choosing. Understandably perhaps, this motion came as something of a surprise to all concerned and some discussion took place between the Court and each counsel appearing. In the end though Mr Bartos insisted that his subsidiary motion should stand. Since for the reasons which I have given I was not with him on his submissions, and since this was the pursuer's action, I felt that I was left with no option but to grant his alternative motion. In these circumstances I will grant decree of dismissal. I will reserve the question of expenses and allow parties to initiate any procedure which appears to them to be necessary.


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