HUGH KENNEDY AGAINST (FIRST) THE RIGHT REVEREND PAUL BONNICI, (SECOND) THE RIGHT REVEREND JAMES WARREN CUTHBERT MADDEN AND (THIRD) DENIS ALEXANDER [2021] ScotCS CSOH_106 (20 October 2021)

HUGH KENNEDY AGAINST (FIRST) THE RIGHT REVEREND PAUL BONNICI, (SECOND) THE RIGHT REVEREND JAMES WARREN CUTHBERT MADDEN AND (THIRD) DENIS ALEXANDER [2021] ScotCS CSOH_106 (20 October 2021)

It is competent for a pursuer to raise a constitutive action against the last known trustees to establish liability against the trust patrimony if there is a subsisting asset, such as a contingent right to indemnity under an insurance policy. The trust patrimony is unitary and subsists through time, including liabilities, regardless of trustee changes. The pursuer's averments regarding insurance and vicarious liability are sufficiently relevant for proof. Limitation grounds under section 17D do not preclude the action at this stage; proof is required to resolve factual uncertainties.

Citation
[2021] ScotCS CSOH_106
Parties
Pursuer: Hugh Kennedy; Defender (first): The Right Reverend Paul Bonnici; Defender (second): The Right Reverend James Warren Cuthbert Madden; Defender (third): Denis Alexander
Jurisdiction
Scotland
Judgment Date
20 October 2021
Procedural Posture
Personal Injury Action / Debate on Relevancy and Competency, Interlocutory Decision
Outcome
Action allowed to proceed to proof or proof before answer; trustee defenders' challenge to relevancy and competency rejected.
Legal Topics
Vicarious Liability, Trust Patrimony, Limitation of Actions, Indemnity Insurance, Competency of Actions Against Trustees
Trust Law Personal Injury Insurance Law Limitation Law Vicarious Liability Trust Patrimony Limitation of Actions Indemnity Insurance +1 more

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Parties

Hugh Kennedy

Pursuer

The Right Reverend Paul Bonnici

Defender (first)

The Right Reverend James Warren Cuthbert Madden

Defender (second)

Denis Alexander

Defender (third)

Procedural Posture

Personal Injury Action / Debate on Relevancy and Competency, Interlocutory Decision

Legal Issues

  1. 1 Whether a trustee's right to indemnity under an insurance policy forms part of the trust patrimony and subsists after winding up
  2. 2 Whether the pursuer has sufficiently specific and relevant averments regarding insurance
  3. 3 Whether trustees are vicariously liable for acts of teachers employed at the school

Ratio Decidendi

It is competent for a pursuer to raise a constitutive action against the last known trustees to establish liability against the trust patrimony if there is a subsisting asset, such as a contingent right to indemnity under an insurance policy. The trust patrimony is unitary and subsists through time, including liabilities, regardless of trustee changes. The pursuer's averments regarding insurance and vicarious liability are sufficiently relevant for proof. Limitation grounds under section 17D do not preclude the action at this stage; proof is required to resolve factual uncertainties.

Court Disposition

Action allowed to proceed to proof or proof before answer; trustee defenders' challenge to relevancy and competency rejected.

Orders

  • Proof or proof before answer granted on pursuer's averments.
  • Trustee defenders' motion for dismissal refused.