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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Scottish Power Generation Ltd v. British Energy Generation (UK) Ltd & Anor [2002] ScotCS 9 (10th January, 2002) URL: http://www.bailii.org/scot/cases/ScotCS/2002/9.html Cite as: [2002] ScotCS 9

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Scottish Power Generation Ltd v. British Energy Generation (UK) Ltd & Anor [2002] ScotCS 9 (10th January, 2002)

OUTER HOUSE, COURT OF SESSION
CA77/14/01	OPINION OF LORD MACFADYEN in the cause SCOTTISH POWER GENERATION LIMITED Pursuers; against (FIRST) BRITISH ENERGY GENERATION (UK) LIMITED, and (SECOND) SSE ENERGY SUPPLY LIMITED Defenders:   ________________

Pursuers: Currie, Q.C. Keen, Q.C., Clive; Shepherd & Wedderburn

First Defenders: McNeill, Q.C., Howie, Q.C. and S. Smith; MacRoberts

4 January 2002

Introduction

1. This is one of two actions which are currently in dependence before me on the commercial roll in connection with a dispute which has arisen over a contract called the Nuclear Energy Agreement ("NEA") which was originally entered into in 1990. The original parties to the NEA were Scottish Nuclear Limited, Scottish Power plc and Scottish Hydro-Electric plc. The pursuers, Scottish Power Generation Limited, are the successors of Scottish Power UK plc, which was previously known as Scottish Power plc. The first defenders, British Energy Generation (UK) Limited, were formerly known as Scottish Nuclear Limited. The second defenders, SSE Energy Supply Limited, are the successors of Scottish and Southern Energy plc, which was previously known as Scottish Hydro-Electric plc. In this Opinion I shall refer to the pursuers and their predecessors as "SP", to the first defenders as "BEG" and to the second defenders and their predecessors as "SSE". The other action ("the BEG action") is at the instance of BEG against SP and SSE.
2. The purpose of the NEA was to regulate the terms on which BEG sold to SP and to SSE electricity generated by BEG at their nuclear power stations in Scotland. The NEA contained complex provisions for determining the price to be paid for such electricity. The formula was essentially dependent on their being a Pool Price set in the market for electricity which operated in England. As a result of a change in the structure of that market in March 2001, there is no longer any such thing as a Pool Price. The consequence is that the price payable under the NEA is no longer calculable in accordance with the express terms of the NEA. That much is common ground between SP and BEG.
3. In the actions which have been raised the parties contend for various methods of determining the price to be paid in the circumstances that now prevail for the electricity supplied by BEG to SP and to SSE in the period since 27 March 2001 and to be so supplied in the future. In this action SP conclude for declarator (a) that in consequence of the termination of the Pool trading arrangements in England the price payable by SP to BEG is no longer capable of being calculated by reference to the formula set out in Part 1E of the Schedule to the NEA, and (b) either (i) that there is an implied term in the NEA that in those circumstances the price is to be determined by reference to certain principles set out in Part 1K of the Schedule to the NEA, and that failing agreement on the price by reference to those principles any party shall be entitled to refer the question of price to the Disputes Procedure provided for in Part 4 of the Schedule to the NEA, or alternatively (ii) that in those circumstances the NEA came to an end on 27 March 2001 by reason of frustration. In the BEG action, BEG conclude for declarator that in respect of various periods between 21 March 2001 and 1 April 2005 the price should be calculated on certain bases which involve reading the NEA as if it contained certain provisions as to the meaning of Pool Price which are somewhat different from those it in fact contained. Although, for reasons which need not be detailed for present purposes, BEG chose to set out their contentions in a separate action, the BEG action is, in effect, a counterclaim to the present action. In neither action are there any conclusions for payment.
4. In the period since March 2001 BEG have continued to invoice SP on the basis of the formula set out in Part 1E of the Schedule to the NEA. They have been able to do so for the following reason. Part of the procedure for operation of the formula involved SP giving an estimate of the Pool Price for the ensuing year. Invoices would initially be based on that estimate. There was then a procedure for correcting any difference between the estimated Pool Price and the actual Pool Price once the latter was known. In February 2001 it was not yet known with certainty when the Pool arrangements would be brought to an end. SP therefore, in accordance with their obligations under the NEA, provided an estimate of future Pool Prices in the normal way. In view of the fact, however, that it was known that the Pool arrangement was likely to be brought to an end at some stage, SP put that estimate forward only on the hypothesis that there would continue to be a Pool Price until March 2002. In the event, the Pool arrangement was brought to an end on 27 March 2001. Nevertheless, BEG have continued to invoice SP on the basis of the estimated Pool Price, despite (i) the fact that it has been known since 27 March 2001 that the hypothesis on which SP made the estimate has not come to pass, and (ii) the fact that since there is now no Pool Price, there is no means of correcting prices based on the estimated Pool Price by reference to the actual Pool Price.
5. SP maintain that the invoices rendered since 27 March 2001 have no proper foundation in the NEA, since neither party contends in the actions now in dependence that the price can now be determined in accordance with the existing express provisions of the contract. They have nevertheless continued to pay the invoices in full. They have done so under protest, and under reservation of the contention that the payments for which they have been invoiced and which they have made have been excessive. SP now put forward a Pricing Calculation (No. 6/18 of process) in terms of which they set out a methodology for calculating the extent to which the payments made are excessive. According to SP that Pricing Calculation is not intended to be definitive or to state the absolute minimum amount which they contend should be paid. On the contrary, they expressly reserve the right to contend ultimately that the proper price is lower than would be brought out by the application of the methodology set out in the Pricing Calculation. They put the Pricing Calculation forward, however, as a means of making a broad division of the invoiced prices into undisputed and disputed parts. The methodology set out in the Pricing Calculation has independent support in principle from Dr Dieter Helm of Oxford Economic Research Associates (No. 6/38 of process). SP estimate, by the application of the methodology set out in the Pricing Calculation, that they have overpaid £52.3 million so far, and that by the end of the NEA in March 2005 the total overpayment will have reached £320 million.

The Motions

6. What is proposed in the motions now before me is that there should be set up a designated account to contain the disputed payments (i.e. the amounts by which the prices invoiced exceed the amount that SP contend would be appropriate). It is contemplated that the designated account would be held in trust in order to protect the funds in it from the claims of the parties' creditors. Into that account would go (1) the £52.3 million already said to have been overpaid, and (2) the alleged overpayment element of each future payment. So far as the £52.3 million is concerned, two possibilities are contemplated, namely (i) that the lump sum be paid into the designated account by BEG or (ii) that SP deduct a sum (the figure mentioned in the motion is £6.54 million) from each future payment and pay the deducted sum into the designated account until the whole £52.3 million has thus found its way into the designated account. In effect, if the motion were granted, a sum broadly equivalent to (but not definitive of) the disputed element of the payments since March 2001 and for the remainder of the life of the NEA would eventually be put in neutral hands pending resolution of the dispute.
7. Although the motion has been enrolled in both actions, it was, as I understood it, agreed in the course of the hearing that it would be sufficient that it should, if granted, be granted in one process only. I propose therefore to deal with it in this action.

Competency

8. The first issue that I require to address is the competency of my making an order of the sort contemplated in the motion. The basis on which SP proceed is section 47(2) of the Court of Session Act 1988 ("the 1988 Act"), which provides:

"In any cause in dependence before the Court, the Court may, on the motion of any party to the cause, make such order regarding the interim possession of any property to which the cause relates, or regarding the subject matter of the cause, as the Court may think fit."

The subsection is thus in two parts. An order may, in the discretion of the court, be made if it is (a) an order "regarding the interim possession of any property to which the cause relates", or (b) an order "regarding the subject matter of the cause". In this case SP seek to rely on both parts of the subsection.

9. Mr Currie for SP referred to Stirling Shipping Co. Ltd. v National Union of Seamen 1988 SLT 832. That case was concerned with the power conferred on the court by section 89 of the Court of Session Act 1868, where something is done that might have been prohibited by interdict, to order a party to perform any act necessary for reinstating the complainer in his possessory right or for granting specific relief against the illegal act complained of. Reference was made in the course of argument in that case to section 6(7) of the Administration of Justice (Scotland) Act 1933, which contained a provision in the same terms as section 47(2) of the 1988 Act. With reference to section 6(7) Lord Cullen said (at 835J):

"The words 'regarding the subject matter of the cause' are not attached to the preceding words 'the interim possession of any property', but form a separate branch of the provisions under which the court is empowered to make an order. 'The subject matter of the cause' is not restricted to a 'thing' but would cover the matters with which the cause is concerned."

Mr Currie also referred to Black Arrow Group plc v Park 1990 SLT 254, which was directly concerned with the second branch of section 47(2). There the Lord Ordinary (Lord Clyde) said (at 255J-K):

"It seems to me that the intention of the statute as indicated by its language is to confer a wide power. The scope of the order which may be made is such order as the court may think fit, which indicates a wide discretion on the nature of the order. Its substance is only defined by the requirement that it be one 'regarding the subject matter of the cause'. That phrase seems to me to take the scope of the order outside the precise limits of the remedies sought in the action and to extend the scope to the making of an order ancillary to the precise issue in the cause."

In the Inner House, however, the latter part of that observation was held to be flawed. In the Opinion of the Court delivered by Lord Justice-Clerk Ross it was said (at 256K-257A) that:

"The test to be applied is not whether the order sought is ancillary to the prime issue in the cause; the test is whether it is an order regarding the subject matter of the cause. Having regard to the words used in the subsection, we are of opinion that the proper approach is to ask - what is the subject matter of the cause? ... The Lord Ordinary nowhere states what he regards as the subject matter of the cause. Without determining what the subject matter of the cause is, one cannot conclude whether an order sought would be an order regarding the subject matter of the cause."

The court went on to identify the subject matter of the cause by reference to the conclusions and the averments of the parties, held that what was in issue was the existence of the contract, not its terms or content, and therefore concluded that the order sought was not within the scope of section 47(2).

10. Mr Currie submitted first that the order that SP sought fell within the second part of section 47(2), as an order regarding the subject matter of the cause. He submitted that the decision on the merits of these actions would inevitably determine, or at least form part of the determination of, the amount to be paid by SP to BEG for supplies of electricity after 27 March 2001. The fact that the parties had sought to focus the dispute in competing declaratory conclusions, without pecuniary conclusions, should not be allowed to mask the reality that the dispute was about what payment should be made. An order effecting interim regulation of payment pending resolution of the dispute, by securing that the disputed amount was held safe in neutral hands, was an order regarding the subject matter of the cause.
11. Mr Currie also submitted that the order sought was competent in terms of the first branch of section 47(2). An order requiring the disputed part of the price to be paid into the designated account was an order regarding the interim possession of property to which the actions relate. The order, if granted, would require money to be paid into the designated account, and would thus regulate possession of it. The money in question was property to which the cause related, in that the real substance of the dispute was whether the money in question was or was not payable by SP to BEG. It was self evident that money was "property", albeit incorporeal property. In that connection, Mr Currie made reference to The New York Breweries Co. Ltd. v Attorney-General [1899] AC 62, in which the Earl of Halsbury LC held (at 69) that it was possible to "take possession of" incorporeal property. Money, Mr Currie submitted, was "property" within the meaning of section 47(2) and an order that money should be paid into a designated account was an order regarding the interim possession of that property.
12. Mr Howie for BEG characterised the order which SP sought as "an extremely ambitious order" which could not competently be made under section 47(2). The first part of the subsection was concerned with interim possession of corporeal property, heritable or moveable; with property of which there could be physical or natural possession. Money was not "property" within the meaning of the subsection. Moreover, an order could only be made regulating interim possession of property "to which the cause relates". The actions did not relate to the money already paid or to be paid by SP to BEG. They related to whether the NEA still subsisted (the conclusion for declarator that it had been frustrated) and to whether, if it did, it must be construed as containing, by implication or otherwise, provisions regulating the calculation of the price payable in the events which have happened. Equally, turning to the second part of the subsection, the money which SP contended had been overpaid or would be overpaid in the future was not "the subject matter of the cause". The actions contained no conclusions under which a decree for payment of money by SP to BEG, or repayment of money by BEG to SP, could be granted. The view expressed in the Inner House in Black Arrow Group showed that Mr Currie's broad approach to "the subject matter of the cause" was not warranted. The order sought was therefore not competent under either branch of section 47(2).
13. In my opinion SP's reliance on the first part of section 47(2) is misconceived. Although the point might benefit from fuller discussion than was possible in the time available for the hearing of this motion, I am inclined to the view that the first part of section 47(2) contemplates an order regulating the physical possession of corporeal property, heritable or moveable. It does not seem to me to be expressed in a way that can readily be construed as warranting an order for interim payment of money, whether payment by one party to another, or, as sought here, payment into an account to be held in trust pending the decision of the case. I do not consider that Mr Currie's reference to New York Brewery v Att-Gen carries him as far as he would require to go to succeed in that aspect of his submissions.
14. If I had regarded the alleged overpayments as "property" within the meaning of the subsection, and an order for payment of them into the designated account as one regarding interim possession of that property, I would not have accepted Mr Howie's second submission in relation to the first part of section 47(2). I would have accepted, in that event, that the property was property to which the cause relates. The word "relates" in my view contemplates the existence of some form of relationship between the property and the cause. The property need not itself be the direct subject of one of the remedies sought in the conclusions. In this case, any realistic view of the dispute between SP and BEG would in my view recognise that, although all that are sought are declarators as to whether the NEA subsists and, if so, what provision it makes for the calculation of the payments due for the electricity supplied, the practical purpose of these conclusions is to obtain a decision which will determine what payment ought to have been made for the period since March 2001 and ought to be made for the remainder of the duration of the NEA. That is sufficient, in my view, to make the disputed sums, if they are "property" at all, property to which the causes "relate".
15. However, given that the disputed sums are not in my view "property" within the meaning of section 47(2), it follows that, if the motion is to be competent, SP must rely on the second part of section 47(2). I accept Lord Cullen's observation in Stirling Shipping that the two parts of the subsection are separate and independent of each other. It follows that the fact that I have held that the order sought is not warranted as an order "regarding the interim possession of ... property to which the cause relates" does not exclude the possibility that it may be competent as an order "regarding the subject matter of the cause". It is therefore sufficient for SP's purpose if the order which they seek would be one "regarding the subject matter of the cause". I accept aspects of what was said in Black Arrow Group v Park both by Lord Clyde in the Outer House and in the Opinion of the Second Division. From Lord Clyde I take the proposition that the scope of the order may go beyond the precise limits of the remedies sought. I do not read the passage in the Opinion of the Court at 256K as demurring to that part of what Lord Clyde said at 255K. From the opinion of the Second Division I accept that it is necessary to ask what the subject matter of the cause is, and that that is to be answered by reference to the conclusions and averments. Applying that approach to the present case, I am of opinion that the subject matter of the cause is (1) whether the NEA continues to subsist after 27 March 2001 in the events which have happened, and (2) if so, what the terms as to computation of price are which are to be implied into it or otherwise regarded as forming part of it in the events which have happened. The parties' whole purpose in seeking the remedies that they do is to enable them to know how to compute the payments which fall to be made for electricity supplied in the period of the NEA after March 2001. In so far as payments have been made and may continue to be made prior to the final decision of the case, the determination of the issues focused by the declaratory conclusions will inevitably determine the basis on which it will be possible to calculate whether SP ought to pay more to BEG than they have done, or on the other hand BEG ought to repay to SP part of the payments already made, and in either case the amount of the payment or repayment required. Although the parties do not state monetary conclusions, the practical aim is to discover what money is, and will become, due. In my opinion in that situation an order regulating how disputed funds are to be held pending resolution of the issue which will determine to whom they should be paid is properly to be regarded as an order regarding the subject matter of the cause.
16. I am therefore of opinion that the motion is competent under the second part, although incompetent under the first part, of section 47(2).

Discretion

17. I turn therefore to the question whether the order sought is one that in the circumstances I ought to make. In addressing that question I regard myself as exercising a wide discretion (see Black Arrow Group, per Lord Clyde at 255J).
18. In support of the proposition that I should, as a matter of discretion, grant the order sought, Mr Currie referred first to the fact that both SP and BEG accepted that the price-fixing formula in the NEA was no longer operable according to its terms. There was a substantial bona fide dispute as to the legal consequences, so far as payment for continuing supplies of electricity after 27 March 2001 was concerned, of the abolition of the Pool. The invoices which BEG had continued to render were based on (1) a provision of the NEA which, in their pleadings, they accepted could not now be operated according to its terms and (2) an estimate of the Pool Price for the ensuing year made by SP expressly on the hypothesis that the Pool would continue in existence. That hypothesis was contrary to the fact. Moreover, the safeguard which formerly operated in relation to invoices based on estimates of Pool Price - that they would subsequently be corrected by reference to the actual Pool Price - could no longer be operated. On the other hand the Pricing Calculation put forward by SP was an attempt to calculate the proper price to be paid in the circumstances which now prevail. Its methodology had support from an independent expert economist. In those circumstances, it was appropriate that the margin between the invoiced price and the price calculated in accordance with the Pricing Calculation should be set aside in a designated account pending resolution of the dispute.
19. Mr Currie further submitted that BEG's financial position should be taken into account. He referred to No. 6/19 of process, a Report dated 13 December 2001 commissioned by SP and provided by Deloitte & Touche. In section 5 of that document (see also paragraph 2.5) the conclusion is expressed that BEG does not have the liquid resources to repay the sum that SP currently believes has been overpaid, and would require significant and sustainable funding in order to do so. It is further observed that the position deteriorates with the passage of time and the making of further overpayments. It is asserted that BEG's future trading is vulnerable to the risks of wholesale electricity prices in the UK continuing to fall and of the adequacy of nuclear generating provision leading to an acceleration of plant closure. Mr Currie submitted that, with a debate fixed for August 2002 and the possibility of a proof and a reclaiming motion thereafter, the litigation might not be concluded until about the time of the expiry of the NEA in April 2005. By then the alleged overpayment would have risen to about £320 million. It was, he submitted, unacceptable for any company to build up that total of alleged overpayment. Aside from any view of the present financial position of BEG, the capability of any company to meet a liability of that size in four years time involved an unacceptable degree of speculation. The unheralded failure of a large utility company was not an unknown phenomenon. If the order sought were not granted, SP would be forced to reconsider the possibility of withholding the disputed amount. That might well lead to the assertion that they were in breach of contract, with consequent court action and diligence on the dependence. It was preferable that the disputed amount be placed in a designated account in the manner proposed pending resolution of the dispute.
20. Mr Howie submitted that the proper scope of an order under section 47(2), if competent, was to preserve the status quo, not to innovate upon it (except where it was used in effect to achieve interim specific implement). Here the effect of the order sought would be to compel BEG to dispose of a substantial part of their assets in a particular way. That was not something the court should do under section 47(2).
21. Mr Howie further submitted that provision for the situation in which the parties find themselves is made in the NEA. Clause 13.2.2 provides:

"If [SP] ... genuinely and bona fide disputes that any itemised sum ("the Disputed Sum") on any such invoice rendered pursuant to Clause 13.1 is payable, then, provided that on the due date for payment of the Disputed Sum [SP] ... shall have given notice to [BEG] of its intention to withhold the Withheld Sum (as hereinafter defined) stating in reasonable detail the bases upon which it so genuinely and bona fide disputes that the Disputed Sum is payable it shall be entitled to withhold, pending resolution of such dispute, a sum ("the Withheld Sum") not exceeding 50% of the Disputed Sum."

There was thus a contractual mechanism for dealing with a disputed invoice. That being so, it was not appropriate for the court to make an order in effect re-writing the provision which the parties had agreed to cover the situation in question.

22. Mr Howie further submitted that the Deloitte & Touche Report did not justify making the order sought. There was nothing in the report to suggest that there was any reason to suppose that the provision made by BEG for the cost of decommissioning nuclear plant was inadequate. In any event, the report concentrated on BEG's own liquid funds. No good reason for concentrating on liquid funds was stated. Moreover, there was no ground stated for supposing that group support would not be forthcoming, if required. Group net assets were £1,298 million (British Energy PLC, Annual Report and Accounts, 2000/2001, page 12). The Report did not provide a proper foundation for the inference that BEG would be unable to make repayment, if it were found obliged to do so. On the other hand, to deprive BEG of the disputed funds for the duration of the litigation would place them at a distinct commercial disadvantage.
23. In response to Mr Howie's argument based on Clause 13.2.2 of the NEA, Mr Currie submitted that the procedure provided for in that clause applied only to invoices which complied with Clause 13.1. BEG accepted, however, in the current actions, that that invoicing procedure could not be carried out according to its terms after 27 March 2001. SP were therefore not obliged to apply the Clause 13.2.2 procedure in disputing an invoice rendered as if the contractual procedure were operable when it was conceded by BEG that it was not.
24. In considering whether I ought as a matter of discretion to make the order sought, I begin by noting the fact that both SP and BEG accept that the contractual procedure laid down in the NEA for calculation of the price to be paid for electricity supplied by BEG to SP has been incapable of being operated according to its terms since 27 March 2001. Each party's primary contention is that by implication or otherwise the procedure remains capable of being rendered operable, but neither suggests that it can simply continue to be operated in the way it was before 27 March 2001. In particular, it does not seem to me that it would be right to treat the basis on which BEG have continued to invoice SP as having any prima facie entitlement to be regarded as bringing out the correct sum due. That basis involves using SP's estimate of Pool Price in circumstances to which it was not intended to apply, and in which the normal safeguard of subsequent correction by reference to the actual Pool Price is unavailable. Conversely, although the methodology put forward by SP in the Pricing Calculation has a limited measure of independent support, it was not suggested that it has any better claim to be regarded as prima facie correct. The situation is therefore that BEG have since March 2001 supplied electricity to SP and continue to do so. Some payment is prima facie due. The court is not, however, in a position to form any view at this stage as to whether the sums claimed by BEG, or the sums suggested by SP, or any other particular sums will ultimately be found to be due. There is, in effect, a dispute the amount of which can, in broad terms, be regarded as the difference between the invoiced amount and the amount brought out by applying the methodology set out in the Pricing Calculation. The amount involved is already very large (£52.3 million), and will, if the dispute is not resolved, as it may not be, before the expiry of the NEA in 2005, rise to about £320 million. In that situation, it seems to me that there is much to be said for the proposition that it is desirable in principle that the disputed money should be preserved in neutral hands pending resolution of the dispute, and that it should not be left in the hands of one or other party and vulnerable to the claims of his creditors and all the exigencies of that party's commercial life. I accept Mr Howie's submission that there is in the material before me no real and specific reason to be apprehensive about BEG's ability (with or without group support) to make repayment in due course, but that does not in my view deprive the point of its force. It is the difficulty of accurate forecast over a period of years combined with the size of the sum in issue that seems to me to afford cogent ground for setting the disputed sum safely aside in neutral hands. I appreciate that to deprive BEG of the use of the disputed sum will have an adverse economic impact on them, but that point would have more force if they were in a position to make out a case that their approach to computation of the sums due was prima facie the correct one.
25. I do not consider that Mr Howie was right when he submitted that section 47(2) should be used to preserve the status quo rather than innovate upon it. There are no doubt circumstances in which the proper exercise of the court's discretion will be to preserve the status quo, but it is not in my view a general rule. I see no justification for declining to make a section 47(2) order simply because to make the order would innovate on the status quo, when the effect of taking that course is to leave a very large disputed sum of money, to which neither party at this stage can claim a better prima facie entitlement than the other, in the hands of one party, and vulnerable to the claims of that party's creditors.
26. I was at first impressed by Mr Howie's submission that I should be slow to intervene where the contract itself makes provision for partial retention of disputed amounts. I am, however, persuaded by Mr Currie's submission that Clause 13.2.2 of the NEA cannot be determinative when it is common ground between the parties that the payment provisions of the NEA cannot now be operated according to their terms.

Result

27. On the whole matter, I have reached the conclusion that it is appropriate to make an order in broadly the terms sought. I would, however, so far as the alleged overpayment to date is concerned, grant it in the way contemplated in paragraph (a)(ii) of the motion. In other words, I do not consider it appropriate to order BEG to pay a lump sum of £52.3 million into the designated account. It is, in my view, more appropriate to adopt the alternative course of authorising SP to retain £6.54 million per month from future payments, and ordering them to deposit the sums so retained in the designated account until the total of £52.3 million has been so deposited.
28. Following the original hearing of the motion on 19 December 2001, I indicated on 20 December that I was minded to grant the motion, but continued the hearing until 4 January 2002, to enable the parties to discuss the arrangements for setting up the designated account. When the case called on the latter date, I was informed that agreement had been reached on the terms of the trust on which the sums at credit of the designated account will be held. I was informed that the intention now was that the designated account should be with Lloyds TSB or a trust company subsidiary of theirs. The interlocutor has therefore been pronounced in a form which will accommodate that change of intention.
29. BEG moved for leave to reclaim. Having heard counsel for BEG in support of that motion and counsel for SP in opposition to it, I granted the motion. It was common ground that it was appropriate that I should, in exercise of my power under Rule of Court 38.5(5), attach a condition to my grant of leave to reclaim to the effect that, notwithstanding the marking of a reclaiming motion, the payments into the designated account contemplated in the interlocutor would nevertheless be made. I accordingly imposed such a condition.
30. I would add one further observation. Both cases have, on the motion of all parties, been appointed to debate, and a diet of eight days duration has been set down to commence on 6 August 2002. When the motion for leave to reclaim was being discussed, both SP and BEG expressed a desire to adhere to that diet. Both parties expressed a willingness to co-operate in securing that, if any reclaiming motion has not been heard and disposed of by August 2002, means can be found of returning the case temporarily to the Outer House to enable the debate to take place. It is, of course, a matter for the Inner House whether, and if so how, that is done, but I thought it appropriate to record the position adopted by the parties in relation to that matter before me.