“The Claims [i.e. all 4 of them] shall be listed for a further hearing, for final disposal or additional directions, on the first open date after23 June 2025 , with a time estimate of 3 hours, at which the court shall consider: a) whether, on the basis of the parties’ statement of case, a possession order should be made against the defendant (or any of them); and b) if not, what further directions are necessary to progress the Claims to trial.”
“clearly quite capable to give instructions” and it would be no different to prepare a defence. iii) Miss Clutterbuck was somewhat disingenuous when she gave instructions that she was a licensee, if she knew full well that she was a beneficial owner or the beneficiary of an estoppel. The Judge concluded she ought to have raised those matters and he did not accept that there was a good reason for failing to file a defence. He accepted the medical evidence up to the timing of the ablation procedure, but not that she was unable to give instructions for her defence. He agreed with Mr Rothwell that this was either because there was no defence or it was a delaying tactic. iv) In considering all the circumstances, the Judge included compliance with court orders and moving litigation through the courts in a reasonable and proportionate manner. He stated: “I am satisfied that this could all have been dealt with a long time ago and [Miss Clutterbuck] should not be entitled to benefit from her own omission.” v) In dealing with Mr Paton’s position, he did not accept that Mr Paton could wait until Miss Clutterbuck filed her defence, he said there was no justification for him to wait. He was not entitled to any greater indulgence as he was acting as a litigant in person. He had met Miss Clutterbuck several times but did not ask what her defence might be. vi) The Judge concluded that both applications should have been issued much earlier and commented that the court may take such delay into account although it is not a determinative factor. vii) The Judge concluded: “I find there is no good reason for [Mr Paton’s] failure to file a defence nor do I find that, in all the circumstances, there should be relief granted.” viii) The additional claims that Miss Clutterbuck wished to bring were dealt with. First, a claim for unlawful interference by the Bank of Scotland had no real prospect of success. The Bank and SA were not parties to the litigation. The confidential settlement agreement between those 2 persons had nothing to do with Miss Clutterbuck or Mr Paton. ix) Any claim for an equitable interest or proprietary estoppel would have vested in the trustee in bankruptcy and there was no right to bring a claim in respect of it. The Judge was satisfied that when the bankruptcy was discharged they did not revest and the rights had been lost. In any event, bringing a claim for specific performance as a result of non-completion appeared completely academic because Miss Clutterbuck owned Kiloran. There was no list of expenditures incurred by Miss Clutterbuck. x) In the Judge’s opinion, the applications had the hallmarks of “smoke and mirrors defence” and were a further attempt to delay matters. The Judge refused relief from sanction for both Miss Clutterbuck and Mr Paton. xi) The Judge then consideredCPR 55.8 . The Judge said that the licences had been terminated and that that was “the end of the matter”
“I should add that I consider all potential claims by [Miss Clutterbuck] and [Mr Paton] to be very likely to have no real prospect of success whatsoever and the reason is simply this. The bank’s legal mortgage and legal charge clearly has priority.”
“(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need— (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders. (2) An application for relief must be supported by evidence.”
“I was very surprised and disappointed that she had been sent home in the early hours of this morning” and that “she should be admitted to hospital immediately”
“On that basis and including [Mr Paton] as well, the applications for relief are refused.”
“It is now said today that [Miss Clutterbuck] is the 100% beneficial owner of the shares in Kiloran and it seems the argument is that this, in turn, made her in some way the beneficial owner of Hans Place. Quite how that is possible given that Kiloran is a separate legal entity is beyond me.”
“(1) whether on the basis of the parties’ statements of case, a possession order should be made against the defendant (or any of them); and (2) if not, what further directions are necessary to progress the claims to trial.”
“but go no further than saying that [the Appellants] are licensees.”
“First, in order to set aside a judgment on the grounds that it has been procured by fraud, it is necessary to show that the fraudulent evidence was that of the party against whom the judgment is to be set aside. Second, fraudulent evidence given by a witness for a party is not enough, unless the witness’ evidence is vital to the party’s case and the witness was an integral part of the litigation team. Third, in some circumstances it is appropriate to treat the fraud of party A as that of party B, for example because the two parties adopt a common cause in the proceedings and party B adopts the fraudulent evidence of party A for his own benefit (albeit without knowing it is fraudulent), in which case the judgment may also be set aside against party B.”