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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> MacFie Or Siomos v MacFie Or Cunningham [2001] ScotCS 38 (15 February 2001) URL: http://www.bailii.org/scot/cases/ScotCS/2001/38.html Cite as: [2001] ScotCS 38

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[1] The pursuer and the defender are sisters. They are the daughters of the late Mrs Mary McKinlay Watt or Macfie ("the deceased"), who died on 19 January 1999. There are also executors nominate of the deceased in terms of her Will dated 3 December 1993 and registered in the Books of Council and Session on 27 January 1999. In terms of her Will the deceased divided her estate equally between the pursuer and the defender. No other persons have an interest in the estate of the deceased.

[2] In this action the pursuer, as executor, sues the defender as an individual. She seeks an accounting in respect of the defender's intromissions with (a) the deceased's account (No. 10013975) with the Royal Bank of Scotland ("the Royal Bank Account") and (b) the deceased's account (No. 2201804923) with Alliance and Leicester plc ("the Alliance and Leicester Account") during the period from 2 February 1996 to 20 January 1999, and payment to the deceased's estate of such sum as shall be ascertained from the account as the balance due by the defender to the estate.

[3] In article 3 of the condescendence the pursuer avers:

In article 4, the pursuer avers:

In article 5, the pursuer avers:

[4] The defender admits that the deceased granted the mandates condescended upon. She also admits that between about February 1996 and January 1999 she signed cheques drawn on the deceased's account. She avers that the deceased suffered a stroke in 1990, and that it was at that time that "the mandate was granted in favour of both the pursuer and defender". In answer 4 she sets out a narrative of the background to the intromissions which she made with the accounts. For present purposes the averments that are of particular materiality are as follows:

In answer 5, the defender avers:

[5] The defender pleads (plea-in-law 1) that the pursuer's averments are irrelevant and lacking in specification, and that the action should accordingly be dismissed. She also pleads as follows:

In the course of the hearing on the procedure roll, I allowed the closed record (as further amended) to be still further amended by the addition of the following plea-in-law for the pursuer:

[6] When the case called before me on the procedure roll, Miss Joughin for the defender submitted that the defender's first plea-in-law should be sustained and the action dismissed. She submitted that it could be determined on the pleadings that the pursuer had no entitlement to an accounting with the defender in respect of the defender's intromissions with the accounts in question. There were, in substance, two branches to her submission. The first was that there were no relevant averments that there had subsisted a relationship giving rise to an obligation to account. The second was that, if there was such a relationship, the defender had done all that was required of her by averring that her intromissions were all specifically instructed by the deceased, and those averments had not been denied by the pursuer.

[6] So far as the first of those submissions is concerned, the obvious starting point is the mandate referred to and incorporated in article 3 of the condescendence. Examination of it shows that it is not, as the pursuer's averments suggest, a mandate in favour of the pursuer and the defender authorising them to draw on the deceased's account, but rather a mandate to the Royal Bank of Scotland authorising it to honour cheques drawn on the account when signed on the deceased's behalf by the defender or the pursuer (both referred to as "my Agent"). The mandate confirms that the bank is under no obligation to ascertain the purpose for which the agent exercises the "foregoing powers". (The mandate in relation to the Alliance and Leicester Account is not produced, but I shall assume in the defender's favour that it was in similar terms.) Miss Joughin's submission was that there was a conflict between the averment, and the document incorporated in the pleadings. The averment suggested a mandate granted in favour of the defender. The incorporated document vouched a mandate granted in favour of the bank. There was no averment of any power of attorney or other form of contract constituting the defender the deceased's agent for the purpose of drawing on the account.

[7] In my opinion the first sentence of article 3 of the condescendence does not wholly accurately formulate the nature of the mandate. It is clear on examination of the incorporated document that its primary purpose was not to authorise the defender (and the pursuer) to act as agent for the deceased in operating her account, but rather to authorise the bank to honour cheques signed by the defender (or the pursuer). It would, however, in my view be adopting an inappropriately technical approach to the pursuer's pleadings to regard that inaccuracy as fatal to the relevancy of the case for an accounting. It is in my view clearly implicit in the mandate granted in favour of the bank that the deceased intended that the defender should act as her agent in operating the account. The purpose of the mandate was to draw the intended agency to the attention of the bank and to authorise it to honour cheques signed by the agent. It is not clear from the mandate whether the agency to be conferred on the defender was to be a continuing one, or one put in place ad hoc for each transaction, although the continuing nature of the mandate to the bank would tend to suggest a continuing agency in favour of the defender. Any uncertainty there may be about the nature of the agency conferred on the defender seems to me to be of no practical significance, however, when the accounting sought is confined to the defender's intromissions with the accounts, and the defender admits that she did intromit, at least with the bank account. I am therefore of opinion that on a fair reading the pursuer's averments disclose that that the pursuer's case is that the defender acted as agent for the deceased in operating the accounts. That is a relationship from which, in my opinion, an obligation to account prima facie arises. The first ground on which Miss Joughin argued that the pursuer's pleadings were irrelevant therefore fails.

[8] Miss Joughin's second submission took the form, as I understood it, of the assertion that the pursuer's averments were irrelevant because a relevant defence had been pled, and had not been denied by the pursuer. In my view the submission was ill-founded in both its parts. In the first place, the fact that an intromission has been carried out on the specific authority of the principal does not in my opinion elide the agent's obligation to account. The contention to the contrary confuses two separate matters, namely (i) whether the intromission was within the agent's actual authority, and (ii) whether the principal may call upon the agent to account for the proper conduct of the intromission. I therefore do not consider that the averments made in support of the defender's third plea-in-law constitute a relevant defence to the call for an accounting. In the second place, even if that defence were relevant, the defender cannot, in my opinion, have it upheld as a matter of pleading. Miss Joughin pointed out that the critical averments in support of the defender's third plea-in-law were not denied by the pursuer. That is true so far as it goes. But the response which the pursuer does make to the critical averments is "not known and not admitted". The effect of that response, where the matters averred are not within the knowledge of the party making it, is the same as that of a denial. It puts the defender, quite legitimately, to proof of the averments. The defender cannot invite the court to proceed on the basis that her averments that her intromissions were all authorised are true, when the pursuer, by responding "not known and not admitted" has put her to proof of them. The relevancy of the pursuer's pleadings is therefore in my view not open to attack on the ground that a relevant defence has been left unchallenged.

[9] In the course of the hearing, it occurred to me that the defender might adopt the position that no accounting to the pursuer was required because the defender had already accounted to the deceased in her lifetime. In principle, that would, in my view be a good defence, but would require averments to support it, and would require to go to proof if it were disputed. In the defender's averments there are fragments that might go to support such a defence, such as the reference in answer 4 to the defender regularly going over bills and statements with the deceased, but the defence is not developed, and there is certainly no plea-in-law to the effect that the defender has already fulfilled her obligation to account to the deceased. In these circumstances, it seems to me, the point does not properly arise for decision.

[10] In the result therefore I am not persuaded that the pursuer's averments are irrelevant. The action therefore does not fall to be dismissed. For the reasons given in paragraph [8] above, I am of opinion that the defence formulated in the defender's third plea-in-law is irrelevant. That being so, there is, in my view, nothing to prevent the making of an order for accounts. I shall accordingly make an order for accounts in terms of the first conclusion. It was drawn to my attention that in Maxwell, The Practice of the Court of Session, at page 358, it is said that the time allowed for the lodging of an account is normally ten days. That seems to me to be too short in the circumstances. I shall order the defender to lodge her accounts within twenty one days, allow the pursuer a similar period within which to lodge Objections, and thereafter the defender the like period within which to answer the Objections. There was some discussion of the form which the accounts ought to take. The possibility of relatively informal accounts is recognised in Walker on Civil Remedies at page 306. In my view in the circumstances of the present case a convenient form would be a spreadsheet listing the individual intromissions by date, cheque number, amount, and payee, with in addition a narrative in relation to each item explaining the nature of the individual transaction and the authority, if any, given by the deceased for it.

[11] I shall therefore:

1. repel the defender's first plea-in-law;
2. sustain the pursuer's first plea-in-law and repel the defender's third plea-in-law;
3. sustain the pursuer's second plea-in-law and make an order on the defender, in terms of the first conclusion, for production of accounts within twenty one days;
4. allow the pursuer, if so advised, to lodge Objections to the accounts within twenty one days thereafter; and
5. allow the defender, if so advised, to lodge Answers to the Objections within a further twenty one days.

Since I was not addressed on the question of expenses, I shall reserve the expenses of the hearing on the procedure roll.