Zurich GSG Ltd v Gray & Kellas & Ors

GRAY & KELLAS, and JOHN PETER SHAW GRAY, CAROLINE JANE DAVIS, GRAHAM MORRISON, FIONA MARGARET BARKER and JOHN ROBERT SIMPSON HARDIE

[1 ] An executor-dative, other than a spouse who has right to the whole estate by virtue of prior rights, must find caution as a condition of confirmation: Confirmation of Executors Act 1823 section 2, as amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 section 5. This requirement does not apply to an executor-nominate.

[2 ] The pursuer in this action, remitted from Aberdeen Sheriff Court , is an insurance company. On 22 November 2002 the pursuer granted a bond of caution ("the Bond") in terms of which it bound itself that the estate as contained in the confirmation-dative of the deceased John George Watson Murdoch, wherein David Murdoch had been decerned and was to be confirmed executor-dative qua son to the deceased, should be made free and forthcoming to all parties having interest therein.

[3 ] The pursuer sues the defenders, a firm of solicitors, for damages for reparation on the basis that the pursuer was induced into granting the Bond "as a result of the defenders' fraudulent et separatim negligent misrepresentations".

[4 ] The action came before me for debate on Procedure Roll for discussion of the first and second pleas-in-law for the defenders and the first plea-in-law for the pursuer. Mr Robertson, Advocate, appeared for the pursuer. Mr Johnston QC appeared for the defenders. Both parties had lodged Notes of Argument to which they referred. When he opened his submissions, Mr Robertson's primary motion was for decree de plano but his position came to be that I should allow a proof, having excluded certain of the defenders' averments from probation. Mr Johnston's primary motion was for dismissal.