Mackay v Campbell [1967] UKHL 8

UKHL
Mackay v Campbell
[1967] UKHL 8 · 1967-06-29
LORD REID .—I have had an opportunity of reading the speech of my noble and learned friend, Lord Guest. I agree with him that this appeal should be dismissed.LORD GUEST .—On llth December 1963 the appellant and respondent entered into missives of sale whereby the respondent agreed to purchase and the appellant agreed to sell the islands of Taransay and Gaskir together with the livestock and moveable property for the price of £16,000, and the appellant undertook to deliver to the respondent in exchange for the purchase price a valid disposition of the subjects. Owing to the appellant's failure to deliver a valid disposition of the subjects the respondent, on 29th June 1964, raised an action in the Court of Session(1) for declarator that the defender had failed to implement the missives of sale and to deliver a valid disposition of the subjects, and(2) for decree ordaining the appellant to execute and deliver to the respondent a valid disposition of the subjects. The conclusions of the summons have been at various times considerably amended, but to appreciate the first point taken by the appellant, which is one of procedure, it is necessary to quote the third conclusion as it originally stood, which was, we were informed, substantially in these terms:—
"Alternatively, for payment by the defender to the pursuer of the sum of £10,000"
with a suitable conclusion for interest on the sum sued for.After a debate in the Procedure Roll the Lord Ordinary (Cameron) granted decree in terms of the first two conclusions of the summons as they then stood. Upon a reclaiming motion being taken to the Second Division, and before the case was heard, the appellant lodged a minute in the following terms:—
"Milligan for the defender, without admission of liability, under reservation of his rights and pleas, stated that the defender consents to decree in terms of the alternative third conclusion of the summons."
Subsequently the respondent amended, inter alia , the monetary conclusion to the effect that it was alternative to the claim for decree of implement. But this branch of the case must be approached on the basis of the original alternative conclusion (Third) as unamended. The preliminary argument for the appellant in this House, which was faintly adumbrated before the Division but not sustained, was that upon the minute being lodged the respondent was only entitled to ask for decree in terms of the monetary conclusions of the summons, that the issue between the parties had thereby been determined and that the respondent was not entitled to persist in his conclusion for specific implement of the missives. The action had therefore become incompetent. In my opinion, there is no substance in this argument. In effect the appellant is asking the House to treat the third alternative conclusion (as it then was) as a stark alternative to the second conclusion and to hold that the appellant was entitled to select the alternative and to consent to decree passing, thereby depriving the respondent of his conclusion for implement. Counsel for the appellant agreed that, if the conclusion had read "Alternatively, in the event of the pursuer failing to receive a valid disposition of the subjects, for payment of £10,000", the argument could not have succeeded. But, reading the pleadings in conjunction with the conclusion, this is precisely what the pursuer was concluding for. Condescendence 4 and the plea in law in the form in which we were given to understand it was at that early stage made it clear that the primary conclusion was for implement and that it was only in the event of decree not being granted for implement that there was an alternative conclusion for damages. The Second Division, in my view, correctly repelled the appellant's plea to the competency of the action.A number of subsidiary points were taken in the Division, but they have now disappeared and the substantial point in the appeal related to the relevancy of the appellant's averments of reduction directed to the third plea that the missives of sale, having been obtained improperly while the defender was in a state of facility, should be set aside ope exceptionis and the defender assoilzied. The Second Division have held that the appellant's averments are irrelevant and granted decree to the respondent in terms under which the Court ordered the Clerk of Court to subscribe on behalf of the appellant a valid disposition of the subjects described in the missives. This extreme step was taken in view of the appellant's statement through his counsel that he would never sign a disposition in the respondent's favour.There is a long history of the events leading up to the signing of the missives contained in the appellant's condescendence. The salient facts are that in November 1963 the appellant, who was 64, had an accident to his leg which necessitated his removal to hospital and a subsequent operation. Thereafter "he was in a weak and facile state of mind and easily imposed upon" owing to the fact that he believed falsely that he might die and would never be able again to walk properly and look after his subjects. The respondent, who, it is said, thought that the appellant's injury was trivial and that he would fully recover therefrom, negotiated with the appellant "taking advantage of the defender's false belief about the severity and consequences of his accident." It is also averred that on 18th November 1963 the appellant signed a paper in which the price for the subjects was £10,000 by cheque and £250 in cash and that the respondent then told the appellant that the appellant was "caught by what he had signed" and the respondent and his solicitor led the appellant to believe that he had bound himself to sell the subjects and the appellant believed he had no option but to sign the missives.In assessing the relevancy of the appellant's averments three matters have to be considered:(1) weakness and facility,(2) circumvention, and(3) lesion. These three factors are all interrelated and they must be looked at as a whole and not in separate compartments. The strength of averments on one matter may compensate for the weakness of averments upon other matters.So far as lesion is concerned, the Division have held that there are relevant averments of lesion and in this I think they were right. Indeed, it was not challenged by the respondent. The appellant avers that the true value of the subjects was at least 50 per cent in excess of the price in the missives and the appellant, by consenting to decree, was prepared to pay £10,000 damages and keep the subjects.But this does not take the appellant very far. There are no specific averments of the respects in which his mind was weak and facile. It is not said that his false belief in the severity of his illness and the consequences of his accident were so irrational as to lead to the conclusion that his sense of judgment was impaired. It is not suggested that he was suffering from any form of senile or other mental decay. A mere averment that he was in a weak and facile state of mind, without further specification, is not, in my view, sufficient. I am very doubtful whether there are relevant averments of facility; they are certainly not so strong as to relieve the appellant of the necessity of averring and proving circumvention."Circumvention signifieth the act of fraud, whereby a person is induced to a deed or obligation by deceit"—Stair, I, ix, 9. Bell's Dictionary puts the matter thus:

"Circumvention; deceit or fraud."

This is not a case where the person upon whom the circumvention has been practised is dead or incapax , as may be in the case of the reduction of a testamentary document. In such a case if facility or weakness of mind is satisfactorily averred and the deed is impetrated in favour of the impetrator or his relatives, there is probably no need to aver or prove any specific act of circumvention. Indeed, it may not be possible to do so, because the act would be in secret. Circumvention would in such circumstances be assumed. Such were the cases of Clunie v. Stirling and Horsburgh v. Thomson's Trustees But this is a different case. The injured party is alive and a party to the action. To succeed he must aver some facts and circumstances from which circumvention can be inferred. There is a notable lack of anything suggestive of deceit or dishonesty on the part of the respondent or his solicitor. In particular, there is no averment that the respondent or his solicitor knew that the appellant was not bound by the document of 18th November 1963 but none the less deliberately misled him into thinking that he was bound. Upon the pleadings as they stand, all the facts are quite consistent with honesty on the part of the respondent and his solicitor. None of the averments are, in my view, facts from which circumvention or fraud can be inferred. In the present state of the pleadings the appellant would not be allowed to prove fraud or dishonesty on the part of the respondent or his solicitor and it would be quite unfair, if a proof was allowed, that the appellant should be permitted without notice to cross-examine the respondent or his solicitor in order to show some form of dishonesty or deceit.The Second Division were, in my opinion, right in the conclusion which they reached, and I would dismiss the appeal.LORD PEARSON .—I agree.