MacRobert v Smith [1998] ScotCS 21 (9 October 1998)

MacRobert v Smith [1998] ScotCS 21 (9 October 1998)

The pursuer's pleadings do not disclose a relevant case for declarator of indebtedness or reimbursement independent of the obligation to account for intromissions. However, the averments are sufficient to entitle the pursuer to proof before answer on the ground of action based on count and reckoning for the defender's liability to account for her intromissions with the deceased's monies.

Citation
[1998] ScotCS 21
Parties
Pursuer: David J C MacRobert; Defender: Dr Catherine Smith
Jurisdiction
Scotland
Judgment Date
09 October 1998
Procedural Posture
Civil / Procedure Roll Debate; Interlocutory Decision on Relevancy and Specification of Pleadings
Outcome
Partial success for defender; proof before answer allowed on limited ground
Legal Topics
Judicial Factor, Accounting for Intromissions, Power of Attorney, Fiduciary Duty, Declarator, Proof Before Answer
Succession Law Trusts and Estates Fiduciary Law Judicial Factor Accounting for Intromissions Power of Attorney Fiduciary Duty Declarator +1 more

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Parties

David J C MacRobert

Pursuer

Dr Catherine Smith

Defender

Procedural Posture

Civil / Procedure Roll Debate; Interlocutory Decision on Relevancy and Specification of Pleadings

Legal Issues

  1. 1 Whether the defender is liable to account for intromissions with the deceased's estate as attorney or de facto administrator
  2. 2 Whether there is a basis for declarator of indebtedness or reimbursement independent of accounting
  3. 3 Whether the pleadings disclose a relevant case for proof

Ratio Decidendi

The pursuer's pleadings do not disclose a relevant case for declarator of indebtedness or reimbursement independent of the obligation to account for intromissions. However, the averments are sufficient to entitle the pursuer to proof before answer on the ground of action based on count and reckoning for the defender's liability to account for her intromissions with the deceased's monies.

Court Disposition

Partial success for defender; proof before answer allowed on limited ground

Orders

  • First, second, and seventh pleas-in-law for the pursuer repelled
  • Averment at end of Article 4 of Condescendence excluded from probation