OF THE LAW SOCIETY OF SCOTLAND - The Journal Online

Journal
Civil Courts
May 2002 Volume 47 No 5 30
Karl Construction
strikes again
Sheriff Lindsay Foulis examines issues including minutes of tender and family actions
in his ongoing series rounding-up recent key decisions of the civil courts
Since the last article Marsh v Marsh has been reported
at 2002 SCLR 84, Bain v Bain at 2002 SCLR 152,
McDougall v Tawse at 2002 SCLR 160, and Semple
Fraser v Quayle at 2002 SLT (Sh Ct) 33
Jurisdiction
Following Marsh v Marsh 2002 SCLR 84, another
decision appears on the question of domicile. In
Reddington v Riach’s Exr 2002 GWD 7- 212, Lord
Clarke decided that a man was domiciled in England,
having acquired an English domicile of choice. He had
been born in Scotland. He had travelled extensively
before retiring to Scotland thirty years ago. Fourteen
years later he had moved to England on health grounds.
Some members of his wife’s family moved there. He
stated that he would not move again and bought a
burial plot in England. His wife died there in 1987. She
was buried there.Whilst he was proud of being Scots he
had only visited Scotland on two occasions since 1978.
He never stated that he wished to return to Scotland.
There was further evidence that he operated a bank
account in Scotland and had his legal advisers in
Scotland. In 1996 he executed a will in which he
declared he was of Scottish domicile but also declared
that he wished to be buried beside his wife. His
Lordship decided that the decisive factors were his
intention not to move again and his actings which were
consistent with that intention. He did not return after his
wife’s death. His intention was to remain in England and
accordingly was domiciled there. The declaration as to
domicile in the will was inconclusive and in any event
simply reflected previous similar declarations inserted in
previous wills.
Caveats
Whilst the decision of K and F Applicants 2002 SLT (Sh
Ct) 38 relates to whether a caveat can be competently
lodged in relation to potential applications for a Child
Protection Order, Sheriff Principal Nicholson, in holding
that the lodging of a caveat was incompetent, made
certain interesting observations as to the use of caveats.
He indicated that to enable caveats to be competently
lodged there required statutory provision to be in place.
As a result of the harmonisation between the Sheriff
Court and Court of Session rules, caveats could only be
competently lodged in circumstances specified in the
rules. The Child Protection Order, whilst a protective
measure, was, once granted, complete. It accordingly
was not analogous with an interim order. Ordinary
Cause Rule 4 specified orders to be granted prior to a
notice of intention to defend being lodged. Such notices
had no place in applications for a Child Protection
Order.The European Convention of Human Rights was
of no assistance as it did not require a person to have
the opportunity to present his argument on every
occasion the matter was before a Court. Provided a
hearing within a reasonable time was guaranteed.
Diligence on the Dependence
It will come as no surprise that Lord Drummond Young’s
decision in Karl Construction Ltd v Palisade Properties
plc has been cited in support of a motion to recall an
arrestment on the dependence. This happened in
Dunfermline Sheriff Court recently in Fab-Tek
Engineering Ltd v Carillon Construction Ltd 2002
GWD 13 – 390. In granting the motion for recall of the
arrestment Sheriff Forbes saw no reason to differentiate
between inhibition and arrestment on the dependence.
Accordingly the same factors which were relied upon by
Lord Drummond Young in Karl Construction applied to
arrestments.The Ordinary Cause Rules and in particular
Rules 3.3, 3.5, 5.1.1, and 5.1.3 could be read in such a
way that a sheriff had discretion in whether he granted
a warrant to arrest on the dependence if it was sought.
In those circumstances, the Court required in terms of
section 6 of the Human Rights Act 1998 not to act in a
way incompatible with a right set out in the European
Convention of Human Rights. Sheriff Forbes further
indicated that in considering a motion to recall an
arrestment on the dependence a Court again was
required to avoid acting in a way incompatible with a
convention right. Accordingly in considering such a
motion it fell on the arresting creditor to justify the
propriety of the diligence.