MBM TRUSTEE COMPANY LTD AGAINST WILLIAM MOULTRIE [2024] ScotCS CSOH_14 (14 February 2024)

MBM TRUSTEE COMPANY LTD AGAINST WILLIAM MOULTRIE [2024] ScotCS CSOH_14 (14 February 2024)

The pursuer failed to plead relevant facts and circumstances establishing that the defender, as attorney, held Mrs Moultrie's property in a fiduciary capacity within the meaning of the Prescription and Limitation (Scotland) Act 1973. Mere status as attorney does not suffice; holding property requires factual averments. The action is irrelevant and falls to be dismissed.

Citation
[2024] ScotCS CSOH_14
Parties
Pursuer: MBM Trustee Company Limited; Defender: William Moultrie
Jurisdiction
Scotland
Judgment Date
14 February 2024
Procedural Posture
Action of Count, Reckoning and Payment / Debate on Procedure Roll
Outcome
Action dismissed as irrelevant
Legal Topics
Obligation to Account, Definition of Trustee, Prescription of Fiduciary Obligations, Power of Attorney, Form of Accounting
Trusts and Fiduciary Law Prescription and Limitation Adults With Incapacity Obligation to Account Definition of Trustee Prescription of Fiduciary Obligations Power of Attorney Form of Accounting

Case Brief

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Parties

MBM Trustee Company Limited

Pursuer

William Moultrie

Defender

Procedural Posture

Action of Count, Reckoning and Payment / Debate on Procedure Roll

Legal Issues

  1. 1 Whether the defender remains under an obligation to account for intromissions with Mrs Moultrie's property or whether that obligation has prescribed
  2. 2 Whether an attorney under a continuing power of attorney is a trustee within the meaning of the Prescription and Limitation (Scotland) Act 1973
  3. 3 Whether the expert accountancy report lodged by the defender is a sufficient account of intromissions

Ratio Decidendi

The pursuer failed to plead relevant facts and circumstances establishing that the defender, as attorney, held Mrs Moultrie's property in a fiduciary capacity within the meaning of the Prescription and Limitation (Scotland) Act 1973. Mere status as attorney does not suffice; holding property requires factual averments. The action is irrelevant and falls to be dismissed.

Court Disposition

Action dismissed as irrelevant

Orders

  • Repel pursuer's third plea-in-law
  • Sustain defender's second and third pleas-in-law