ROSEMARY WINTER-SCOTT, THE ACCOUNTANT IN BANKRUPTCY v. BALFOUR & MANSON

The Sheriff Principal, having resumed consideration of the cause, refuses the appeal; adheres to the sheriff's interlocutor of 21 January 2013; certifies the appeal as suitable for the employment of junior counsel, thereafter finds the appellant liable to the respondents in the expenses of the appeal; allows an account thereof to be given in and once lodged remits the account of expenses to the Auditor of Court to tax and to report.

This appeal lies against the sheriff's interlocutor of 21 January 2013 which followed proof on the respondents' first plea in law. The sheriff's interlocutor sustained the respondents' first plea in law and assoilzied them from the craves of the initial writ; repelled all remaining pleas and found the appellant liable to the defenders in expenses of the action.

The pursuer and appellant in the action is the Accountant in Bankruptcy qua permanent trustee on the sequestrated estates of Patricia Anne Phillip of Denmark Farm, Colliston, near Arbroath. The Accountant in Bankruptcy was appointed permanent trustee by Act and Warrant of 3 May 2002. She appointed David A S Gellatly as her agent all in terms of the Bankruptcy (Scotland) Act 1985.

The respondents' and defenders are a firm of solicitors in Edinburgh and the individual partners of that firm at the relevant time.

Central to this action is the defenders' failure or alleged failure to lodge a notice of litigiosity timeously. The sheriff records these matters at findings in fact 10, 11 and 12. It is not disputed that no notice of litigiosity was in place prior to the grant of the standard security. The respondents' dispute whether such a notice should have been lodged by them.