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Joan Pentland-ClarkA Protective Mother: Divorcee: Edinburgh gossip: Catter-wurr.This article was prompted by the Scottish Executive – I trust it assists. Joan begged me to assist her. I foolishly agreed. I helped her but received abuse instead of thanks. She is an intermittent member of Scotland against Crooked Lawyers and a member of the McNamara cabal. I believe it was Mrs Eirlys Lloyd who described Mrs Joan Pentland-Clark as an Edinburgh fish wife. Her niece’s sister in law describes Joan as a worn out vamp -- I quite like her – I find her a delightful muddle of social pretensions possessing somewhat strange views on crop circles and the supernatural. I believe she was the victim of injustice concerning her divorce settlement – but not to the extent she professed. She may be mentally disturbed for otherwise there is little excuse for her tendency to mislead. I regret we fell out. I was not able to concur with her falsehoods --- therefore I refused to lodge various court writs – samples of which I provide below. Recently, I was asked if Joan was a bad person – perhaps, but she is I believe more stupid than bad – was my reply. Given the amount of abuse she poured on David McLetchie MSP and Lord Douglas-Hamilton I am most surprised that any of her ‘Tory’ conspirators have any time for her. Various legal actions have been drafted against her and her (perceived) lazy son – I will update this page as matters progress. Below 1 & 2 are personal letters of mine concerning Joan – the remainder are self evident and should be read in conjunction with the above. 1.Martin Frost’s e-mail to McNamara of 1st January 03 2.Martin Frost’s letter to Joan’s personal friend Jennifer. 3.Joan’s presentation to the Justice 1 Committee 4.Inner House Opinion on Joan’s Appeal in DREVER and HEDDLE 5.Draft Writ: Frost & McNamara v Mr J.H. Macfie 6.Draft Writ: Frost & McNamara v Mrs Anne Meldrum Alison MacLehose (formerly Clark and nee Kennedy) 7.Petition to Nobile Officium 8.See 11 at E. Insolvency & Creditor Recognition: 17th August 04 letter. May I refer to my e-mail to Mr McNamara dated 1st January 2003 regarding the Clarks. The e-mail had been prompted by phone calls to McNamara by Pentland-Clark when Mr McNamara told Mrs Pentland-Clark she was a ‘silly old woman’ or words to that effect. -----Original Message----- From: Martin Frost [mailto:martin.frost@virgin.net] Sent: 01 January 2003 18:02 To: Janette McNamara Subject: Jan 1st 2003 Joan Pentland-Clark Dear Andy, Re: Joan Pentland-Clark The financials: There are three separate causes: A.
Recovery of her pension and monies from the
Judicial Factor.
B. Damages from the executors of the Clark Estate. C. An action for debt raised against her by past lawyers. In simple terms she has paid £1,000 for her option to repurchase which was utilised towards outlays in respect of the above actions; said outlays currently exceed £5,000. On our joint behalf I have advanced her personally cash of £1,500. (£1,000 used to prevent her landlord evicting her; her rent is £1,000 per month, and £500 to prevent her third bank from calling in her borrowing with them). In respect of the Bank of Scotland I persuaded the Bank to advance her a further £15,000 upon our undertaking that if we received funds from the Judicial Factor (as per A above) we would consider giving the Bank some £15,000. Furthermore, I have unofficially kept the Bank informed of progress and have to date managed to forestall the Bank from implementing Bankruptcy proceedings against her for unsecured debt, which exceeds £80,000. Finally, I, after much hassle in September/October, persuaded the Royal Bank to issue her and her son James with a Royal Bank credit card with a limit of £3,500. Said credit card, has our undertaking that we will consider giving the Royal Bank £3,500 when A above is successful. Yesterday, Tuesday 31st December I spoke again with Bennett & Robertson (the Judicial Factors office) with a view to reaching some form of extra-judicial settlement. The Judicial Factor is reluctant, such reluctance no doubt exacerbated by the threats of physical violence against them made by Joan. I do not want to advise Joan but I did speak several times also to the Court General Department yesterday and our Petition to the Nobile Officium is to be placed before the Inner House at the start of the New Term in January… I just do not want Joan goofing it, by her making another stupid appearance in court, or at the General Department. Finally, I have also been obliged to file further material in respect of C above. This costs money not also in court fees but in outlays. I suppose what really pisses me off is that on our behalf we still expend some £100 to £200 per week in respect of cases derived from her, and all we receive in return is heaps of personal abuse, plenty of backstabbing gossip, and overt threats of personal violence and purported blackmail. Re: James Clark James has advanced £5,000 for his option to repurchase in respect of a proposed action against the executors of his late father. To date we have spent some £8,000 upon enquiry agents etc in gathering evidence to support our summons. Furthermore, I have spent over two weeks visiting farms, meeting advisors and speaking to members of the executors’ families. In summary, I understand Joan is penniless, but not only is her predicament not our fault but we have helped her financially. Our assignments from her and James are valid and lawful. We act only in our own name and we have never sought to represent her. Again any letter she may hold reflects this position, and both assignation and letter have repeatedly been upheld as lawful by the court. Kind regards Martin Edenside Kelso TD5 7BS 26th January 2003. Dear Jennifer, Sorry to trouble you again but would you see that Mrs Joan Pentland-Clark receives the following information. 1.She needs to sign the copy appeal documents. 2.She needs to fax and then send one original with her signature to the Clerk of Court at SHERIFFDOM OF GRAMPIAN, HIGHLAND AND ISLANDS AT KIRKWALL. This should arrive with the Clerk no later than Tuesday 28th January. She does not need to send any money. 3.She needs to fax and then send one original with her signature to Messrs Drever & Heddle, Solicitors, a partnership, having its place of business at 56A Albert Street, Kirkwall. This should arrive with Drever & Heddle, no later than Tuesday 28th January. She does not need to send any money. Furthermore, I would be grateful if you would kindly speak to her as a friend. Please attempt to install some financial sense into her modus operandi so that Joan may enjoy a pleasant retirement. She is understandably a proud lady and undoubted she and her family have been badly wronged. That said she often does not help her situation for (a) without doubt she has rubbed up many people the wrong way with her malicious gossiping; and (b) she appears to constantly live way beyond her financial resources even if she had had received her monthly pension entitlement. In short, Joan needs to be honest about her true financial position, cease conning her creditors, and blaming all but herself for her current financial predicament. In broad terms Joan owes well over £100,000 with practically no assets. Her monthly living expenses appear to be approximately £1,800 per month. In terms of her arrears of pension and possible annuity Joan may receive during this current year some £200,000 to £300,000. Joan can reasonably expect to have twenty more years of good life. At her current rate of expenditure, having paid off her debts, Joan will exhaust any settlement she might ingather in but four to six years. Last year Andy McNamara, my colleague, and I secured for her an increased Bank of Scotland facility of £15,000; plus £3,500 from the Royal Bank merchant services along with a loan from us of £1,500. This we did upon our understanding that Joan would ensure that new money recovered would go first to meet these liabilities. I understand Joan has consumed this £20,000 of money and more within the last eight months, and most regrettably she has expressed the view that she does not now recognise the obvious assistance that these funds gave her. Eventually, Andy and I this month prompted the Judicial Factor to petition the Court of Session to bring the matter of Joan’s pension to a conclusion. I am worried that Joan will further antagonise people and delay the speedy passage of the J.F.’s Petition. If Joan chooses to keep her cool it should be possible for to be in receipt of sizeable funds within the next month or so. I understand this is not her intention and hence I do believe the final determination of her pension may take some considerable time. If possible I would like you to talk some financial sense into her. I have spoken to her repeatedly concerning her need to approach Social Services in order that her monthly arrears of rent do not mount up; but in that as in so many other matters Joan refuses to acknowledge the position she has placed herself in. Andy and I have also spent considerable time and expense in ingathering facts concerning a challenge to the executry of James Clark’s estate. Providing the factual background as narrated by Joan stands it should be possible to secure a sizeable cash sum for Joan’s son James, and her two daughters. Such further sum is very likely to be some time off, and even when it comes, I am unsure as to the extent that her children will seek to assist her. Thus it is of prime importance that you seek to install some financial sense into Joan’s life, and that she girds her resources upon which she may be certain. I am sorry to ask but I am positive that I would receive short shift if I again advanced such views to her. Good luck Kind regards Martin Frost Justice 1 Committee 12th Report 2002 Stage 1 Report on Council of the Law Society of Scotland Bill Remit: To consider and report on matters relating to the administration of civil and criminal justice, the reform of the civil and criminal law and such other matters as fall within the responsibility of the Minister for Justice. (As agreed by resolution of the Parliament on 14 December 2000, with effect from 8 January 2001) Membership: Christine Grahame (Convener) Wendy Alexander Lord James Douglas-Hamilton Donald Gorrie Maureen Macmillan Paul Martin Mr Michael Matheson The Committee reports to the Parliament as follows- Introduction and background 1. The Council of the Law Society of Scotland Bill (the Bill) is a Member's Bill, which was introduced on 6 September 2002 under Rule 9.14 of the Parliament's Standing Orders by David McLetchie MSP. Notice of the proposal for the Bill was given on 29 May 2002 and at least 11 other members notified their support for the proposal within one month of that date.1 2. The Bill makes provision about the discharge of functions of the Council of the Law Society of Scotland (the Council), the appointment of sub-committees and the appointment of lay members as members of committees and sub-committees of the Council. The Law Society of Scotland (the Law Society) is a statutory body corporate governed by the Solicitors (Scotland) Act 1980 (the 1980 Act). Under section 1 of the 1980 Act, the Society has as its objects the promotion of the solicitors' profession in Scotland and the interests of the public in relation to that profession. The Society regulates the profession of solicitors in Scotland. The 1980 Act confers functions upon the Society but provides that the business of the Society is conducted by the Council which may act for and in the name of the Society. Statutory functions are conferred upon the Council by the 1980 Act, including determining and dealing with complaints made by a member of the public about inadequate professional services provided by a solicitor.2 3. The Explanatory Notes state that the Bill arises from 3 proposals by the Council which aim to remove any doubt about the powers of the Council which are to delegate their statutory functions to a committee or sub-committee or some other person; to provide for the appointment of sub-committees in the scheme for the constitution of the Council; and to provide in that scheme for the appointment of lay persons to be members of a committee or sub-committee and for the lay persons so appointed to form a majority in the committee or sub-committee to which they have been appointed SUBMISSION FROM JOAN
PENTLAND-CLARK TO ABOVE JUSTICE 1 COMMITTEE
To summarise: I submit that the proposed Discharge of functions of Council of the Law Society, utterly fail to address the main issue of the present perception held by the general public, of the extremely unsatisfactory handling of Client Complaints, by that body, under their statutory obligations, as these are presently constituted. It is not merely a matter that Complaints do not get dealt with in an expeditious manner, because - the Council claim - of the overburdening inundation since 1999. Did complaints take a steep upward curve numerically from that point? If that was not the cause, then this displays an alarming lack of competence and foresight. but it is the iniquitous situation whereby these proposals allow the council to retain their present position of overall power over: - · the composition,
· the election or placement of personnel, · the numerical make-up & complexion of committees or their sub-committees, or ` individuals', and all costs. This continuation of the present all powerful patronage, being left in the hands of the wholly unaccountable, self-interested, Law Society of Scotland, whose job it is to look after the interests, reputations, and the indemnity insurance's of its membership throughout Scotland, without their clients having the benefit of knowing that there will be scrutiny by impartial outside bodies, or independent-minded individuals. The Bill is merely a completely unacceptable `tinkering at the edges' of the longstanding abusive situation, whereby the right to a fair and independent hearing, is denied to complainants to the Law Society of Scotland. Finally, these proposals must be regarded with deep suspicion, as they are put forward by that same Council of the Law Society of Scotland, and the Bill is being introduced to the Scottish Parliament, by David McLetchie WS MSP, supported by Roseanna Cunningham MSP (also a member of the legal fraternity therefore dependent on keeping on the right side of Council, in case voter loyalty should dry-up and a return to the `arms' of the legal profession becomes necessary) Donald Gorrie MSP, Justice 1 Committee member, and Pauline McNeill MSP, Convenor of Justice 2 Committee, also with a law degree. Joan Pentland-Clark 4 November 2002 EXTRA DIVISION, INNER HOUSE,
COURT OF SESSION
Lord Osborne Lord Clarke Lord Weir XA32/03 OPINION OF THE COURT delivered by LORD OSBORNE in APPEAL From the Sheriffdom of Grampian, Highlands and Islands at Kirkwall by MESSRS. DREVER and HEDDLE, Pursuers and Respondents; against MRS. JOAN PENTLAND-CLARK Defender and Appellant: _____ Act: Party Alt: McSporran; Shepherd & Wedderburn, W.S. 2 March 2004 [1] The defender and appellant in this case has appealed to this Court against an interlocutor of the sheriff at Kirkwall, dated 14 January 2003, in which he granted a motion at the instance of the pursuers and respondents, finding the defender liable to the pursuers in the sum sued for of £4,176.61, together with interest thereon at the rate of 8% per annum from 19 April 2002, with expenses as taxed, and made certain ancillary orders. When the appeal came before us, counsel for the pursuers and respondents indicated that his clients did not wish to resist the appeal. He explained that his clients accepted that there were certain unsatisfactory features attaching to the interlocutor of 14 January 2003. In the first place, it had been pronounced after a hearing at which the defender and appellant had not been present. At that hearing, statements had been made on behalf of the pursuers and respondents about the financial circumstances of the defender and appellant, narrated in the sheriff's Report, which it was now accepted were controversial. In the second place, it was also accepted that Kirkwall Sheriff Court had no jurisdiction to entertain the action, which should have been raised in Edinburgh Sheriff Court. Against this background, we were moved by counsel for the pursuers and respondents and the defender and appellant herself to allow the appeal, sustain plea-in-law 4 for the defender and appellant to the extent of finding that Kirkwall Sheriff Court has no jurisdiction to entertain the action, and to recall the interlocutor of 14 January 2003. We are satisfied that that is the appropriate course to take. Having recalled that interlocutor we shall remit to the sheriff to proceed as accords. On the motion of the defender and appellant, which was unopposed, we shall award to her the expenses of this appeal against the pursuers and respondents. [2] Had it not been for the agreed position taken up by the parties as regards the future of the action, it would have been appropriate for us in the circumstances to sustain plea-in-law 4 for the defender and appellant in its entirety and to dismiss the action. However, parties were agreed that the better course would be for the action to be remitted to the sheriff to enable him to exercise his discretion under Ordinary Cause Rule 26.1(3) to transfer the cause to the Sheriff Court before which it appears to him the cause ought to have been brought. In that connection, we were informed that parties were agreed that that court was Edinburgh Sheriff Court, which had jurisdiction and would be convenient for the parties and their witnesses. It was intended that a joint motion to that effect would be made before the sheriff at Kirkwall in due course. He would also require to deal with any ancillary matters arising, including any issue regarding expenses. The condescendence and the answer drafted by Martin Frost which secured Joan Pentland-Clark’s success in the Inner House. Cond 1 The parties are as designed in the instance. They are a Partnership having a place of business at 56A Albert Street, Kirkwall. The Defender is an individual. She resides at 11 Danube Street, Edinburgh. The action is for payment in respect of the Defender's fee note in respect of works done and the provision of legal service by them at Kirkwall. Payment should have been made by the Defender to the Pursuer at their office in Kirkwall. This Court accordingly has jurisdiction. To the knowledge of the Pursuer there are not proceedings pending before any other Court involving the present course of action hereto. To the knowledge of the Pursuer there is no agreement between the parties prorogating the jurisdiction of the present subject matter to another Court. Ans 1 Admitted that the parties are as designed in the instance. Quoad ultra not known and not admitted. Denied that this court has jurisdiction. The action as founded is a consumer contract and therefore under the circumstance as narrated by the pursuer this court has no jurisdiction. Esto: The balance of convenience in any event favors Edinburgh Sheriff Court, as the defender is a litigant in person. SHERIFFDOM OF LOTHIAN AND
BORDERS AT JEDBURGH
INITIAL WRIT In causa Martin Frost residing and with a place of business at Edenside, Kelso, Roxburghshire TD5 7BS and Andrew McNamara residing at and with a place of business at 18 MacNicol Park, Kittoch Glen, East Kilbride, Glasgow G74 4QE as assignees of Mrs Joan Pentland-Clark of 11 Danube Street Edinburgh EH4 1NN. PURSUERS Against Mr J.H. Macfie of 16 Walker Street, Edinburgh both as an individual and as the Judicial Factor on the estate of the late James Clark who resided at Nether Pitlochie, Gateside, Fife. DEFENDER
The pursuers crave the court: 1. To grant decree against the defender (as Judicial Factor on the estate of the late James Clark who resided at Nether Pitlochie, Gateside, Fife) for payment to the pursuers of the sum of £221,000 and with interest thereon at the rate of eight per cent per annum from 19th April 2002. 2.To grant decree against the defender (as Judicial Factor on the estate of the late James Clark who resided at Nether Pitlochie, Gateside, Fife) for payment to the pursuers of the sum of £35,100 and with interest thereon at the rate of eight per cent per annum from 19th April 2002 3.To grant decree against the defender (as an individual) for payment to the pursuers of the sum of £30,000 and with interest thereon at the rate of eight per cent per annum from 19th April 2002 4. To find the defender liable in the expenses of the action. CONDESCENDENCE
1.The pursuers are Martin Frost who has a residence and place of business at Edenside. Kelso, TD5 7BS and Andrew McNamara who has a residence and place of business at 18 MacNicol Park, Kittoch Glen, East Kilbride, Glasgow G74 4QE. They are the assignees of Mrs Joan Pentland-Clark of 11 Danube Street Edinburgh EH4 1NN. Mrs Joan Pentland-Clark is the divorced former wife of the late James Clark, farmer, who died on 5th December 1985. By virtue of a Minute of Agreement of October 1977 collateral to her divorce settlement Mrs Joan Pentland-Clark was a creditor on James Clarks estate. On the sixth day of April 2002 Mrs Joan Pentland-Clark assigned her benefits and associated rights as named above to the pursuers, Martin Frost and Andrew McNamara. The pursuers intimated this assignation to the defender on the eighth day of April 2002. Said assignation is herewith produced; referred to for its terms and incorporated herein brevitatis causa. The defender is John Hamilton McFie who has a place of business at 16 Walker Street, Edinburgh. On the 27th May 1999 Lord Dawson appointed Mr JH MCFIE to be Judicial Factor over the estate of James Clark. Simultaneously Lord Dawson sequestrated the estate of the late James Clark and removed Charles William Pagan and Patrick Collinge Gravatt Wilson from office as executors. This action is raised inter alia to interrupt the period of prescription and limitation; and furthermore it is founded upon the fact that as in Ross v Gordon’s J.F. 1973 S.L.T. (Notes) 91 a judicial factor is not in the same place as a trustee in bankruptcy and in particular a creditor can sue the judicial factor for a debt due to the creditor from the estate. Thus the pursuers seek payment by the defender to the pursuers of the sums of £221,000 and £35,100 and with interest thereon at the rate of eight per cent per annum from 19th April 2002. The place of performance of the above contractual obligations lays at Edenside, Kelso (the business address of the first pursuer, as assignee). The address falls within the jurisdiction of Jedburgh Sheriff Court. The defender at the first pursuer’s place of business should make said payment or provide to the pursuers the relevant intromissions. Under EU law doctrine of first seizure this sheriff court is first seized. This court has jurisdiction. There are no proceedings pending before any other court involving the present cause of action and between the parties hereto. No agreement exists between the parties prorogating jurisdiction of the subject matter of the present cause to another court. 2.A narrative of the factual background to this case is found in the ‘Report of J H MACFIE to the Court of Session of 11th October 2000’ which report is herewith produced and is incorporated herein brevitatis causa. In short, this Report of 11th October on page 29 states that Mrs Joan Pentland-Clark as a creditor due to a divorce settlement with her late and deceased husband James Clark is due £1,886.37 for arrears of maintenance to May 27th 1999; together with a sum for an annuity of £205,400 from his estate. Furthermore, in his Report J H MACFIE states that the estate of the late James Clark is insolvent with a deficit of £80,345.52 and this insolvency appears to be the fault of the executors of the estate who paid out to the beneficiaries prior to settling with the creditors. Finally, in his Report J H MACFIE recommends that the executors, Mr Charles William Pagan and Mr Patrick Collinge Gravatt Wilson, to the estate of James Clark, as individuals, jointly and severally provide such sum as is necessary to restore the estate to solvency. 3.Recent actuarial reports in which the estimated life span of Mrs Joan Pentland-Clark has been revised upwards in line average expected female figures now indicate that the sum for an annuity needs to be revised upwards from £205,400 (supra) to £221,000, which sum is this sum first craved. 4.Since the appointment of Mr JH MACFIE in May 1999, Mrs Joan Pentland-Clark has received little money from the estate thus her arrears of maintenance and accrued interest thereon has risen from £1,886.37 (supra) to £35,100, which sum is the second sum craved. 5.As a result of recent enquiries conducted on behalf of the pursuers it is perceived that Mrs Joan Pentland-Clark and her three children (Carolyn Elizabeth Clark or Sarris, born 23rd October 1960, Joanna Helen May Clark, born 15th June 1968 and James Clark, born 25th December 1969) by her marriage with the deceased James Clark are the victims of a sophisticated legal fraud orchestrated by Mrs Anne Meldrum Alison Clark (James Clark’s much younger childless second wife of short duration, being nee Kennedy and now Mrs Anne MacLehose); and Mr Patrick Collinge Gravatt Wilson; who were knowingly assisted by Mr John Simpson Wilson (solicitor) and unknowingly aided by Mr Charles William Pagan (solicitor). Explained that Anne Clark, James Clark’s second wife, and Patrick Wilson, James Clark’s best friend, were lovers both prior to James Clark’s death and post his death. Originally, Patrick Wilson held out to Anne Clark that following her successful occupation and acquisition of the late James Clark’s assets that he Patrick Wilson would divorce his current wife so he could marry the widowed Anne Clark. Patrick Wilson, a man who had previously benefited from alleged trust irregularities and trust intromissions, promoted a scheme whereby Anne Clark abused her position of trust and whereby Patrick Wilson and Anne Clark took unfair advantage of James Clark’s deathbed state in that they purported that James Clark had knowingly and purposefully decided to disinherit his children and in furtherance of this purported dis-inheritance aim James Clark entered into an alleged partnership and lease agreement with his new wife Anne Clark. Allegations in support of the above contentions have constantly been submitted to Mr JH MACFIE from Mrs Joan Pentland-Clark. Mr JH MACFIE has neglected or delayed to act timeously in this cause and has neglected his office as judicial factor. On account of his negligence Mr JH MACFIE is personally liable to Mrs Joan Pentland-Clark for his omissions. Between May 1999 and April 2002 Mrs Pentland-Clark has expended some 210 hours of her time in seeking payment from JH MACFIE. In addition she has suffered further emotional upset. A fair estimate of her loss against Mr JH MACFIE as an individual is £30,000, which sum is the third sum craved 6.The pursuers are concerned that there appears to have been dishonesty and possible misappropriation of funds and/or assets by the past executors. Given the past executor’s multiple roles, at the very least there appears to be a prima facie case of a gross conflict of interest and probable mismanagement. Thus the pursuers have raised proceedings against the past executors Mrs Anne Clark; Mr Patrick Wilson; and Mr Charles Pagan. In total in these executor proceedings the pursuers seek from the past executors as individuals some £146,000 plus interest in respect of needless legal costs incurred; some £240,000 plus interest in respect of Joan Pentland-Clark’s time and expenditure outlays fighting the executors alleged fraudulent scheme and £100,000 for solatium in respect to same. These executor sums sought are in addition to and not in substitution to the craves in this action. The defender has been informed of these three other actions. The defender has been requested by Mrs Joan Pentland-Clark to make a substantial payment on account. The defender refuses or at least delays to do so. This action is accordingly necessary. PLEA IN LAW The defender, both as an individual and as the Judicial Factor on the estate of the late James Clark who resided at Nether Pitlochie, Gateside, Fife, being indebted to the pursuers in the sums sued for, decrees should be granted as craved. In respect whereof Martin Frost Party Edenside Kelso TD5 7BS Andrew McNamara Party 18 MacNicol Park, Kittoch Glen, East Kilbride, Glasgow G74 4QE SHERIFFDOM OF LOTHIAN AND
BORDERS AT JEDBURGH
INITIAL WRIT In causa Martin Frost residing and with a place of business at Edenside, Kelso, Roxburghshire TD5 7BS and Andrew McNamara residing at and with a place of business at 18 MacNicol Park, Kittoch Glen, East Kilbride, Glasgow G74 4QE as assignees of Mrs Joan Pentland-Clark of 11 Danube Street Edinburgh EH4 1NN. PURSUERS Against Mrs Anne Meldrum Alison MacLehose (formerly Clark and nee Kennedy) of ‘Over Kinfauns, Kinfauns, Perth, Perthshire PH2 7HD’, both as an individual and as an executor on the estate of the late James Clark who resided at Nether Pitlochie, Gateside, Fife. DEFENDER The pursuers crave the court: To grant decree against the defender (as an individual and as in her private capacity as an executor for the estate of the late James Clark who resided at Nether Pitlochie, Gateside, Fife) for payment to the pursuers of the sum of £146,000 and with interest thereon at the rate of eight per cent per annum from 19th April 2002. To grant decree against the defender (as an individual and as in her private capacity as an executor for the estate of the late James Clark who resided at Nether Pitlochie, Gateside, Fife) for payment to the pursuers of the sum of £240,000 and with interest thereon at the rate of eight per cent per annum from 19th April 2002. To grant decree against the defender (as an individual and as in her private capacity as an executor for the estate of the late James Clark who resided at Nether Pitlochie, Gateside, Fife) for payment to the pursuers of the sum of £100,000 and with interest thereon at the rate of eight per cent per annum from 19th April 2002 To find the defender liable in the expenses of the action. CONDESCENDENCE The pursuers are Martin Frost who has a residence and place of business at Edenside. Kelso, TD5 7BS and Andrew McNamara who has a residence and place of business at 18 MacNicol Park, Kittoch Glen, East Kilbride, Glasgow G74 4QE. They are the assignees of Mrs Joan Pentland-Clark of 11 Danube Street Edinburgh EH4 1NN. Mrs Joan Pentland-Clark is the divorced former wife of the late James Clark, farmer, who died on 5th December 1985. By virtue of a Minute of Agreement of October 1977 collateral to her divorce settlement Mrs Joan Pentland-Clark was a creditor on James Clarks estate. On the sixth day of April 2002 Mrs Joan Pentland-Clark assigned her benefits and associated rights as named above to the pursuers, Martin Frost and Andrew McNamara. The pursuers intimated this assignation to the defender on the eighth day of April 2002. Said assignation is herewith produced; referred to for its terms and incorporated herein brevitatis causa. The defender is Mrs Anne Meldrum Alison MacLehose (formerly Clark and nee Kennedy) who resides at ‘Over Kinfauns, Kinfauns, Perth, Perthshire PH2 7HD’, both as an individual and as an executor on the estate of the late James Clark who resided at Nether Pitlochie, Gateside, Fife. This action is raised inter alia to interrupt the period of prescription and limitation should it prove that the defender is not guilty of fraud, conspiracy to defraud or breach of fiduciary duty. The defender in Clark v Clark’s Executors SLT 1989 Page 665 was found to be in ‘Auctor in rem suam’ and she along with John Simpson Wilson, solicitor, Kinross, and Patrick Collinge Gravatt Wilson were rebuked by Lord Mayfield for their conduct as executors of James Clark’s estate. The pursuers seek payment by the defender to the pursuers of the sums of £146,000; £240,00 and £100,000 and with interest thereon at the rate of eight per cent per annum from 19th April 2002. The place of performance of the above contractual obligations lays at Edenside, Kelso (the business address of the first pursuer, as assignee). The address falls within the jurisdiction of Jedburgh Sheriff Court. The defender at the first pursuer’s place of business should make said payment or provide to the pursuers the relevant intromissions. Under EU law doctrine of first seizure this sheriff court is first seized. This court has jurisdiction. There are no proceedings pending before any other court involving the present cause of action and between the parties hereto. No agreement exists between the parties prorogating jurisdiction of the subject matter of the present cause to another court. A narrative of the factual background to this case is found in the ‘Report of J H MACFIE to the Court of Session of 11th October 2000’ which report is herewith produced and is incorporated herein brevitatis causa. In short, this Report of 11th October relates a troubled tale stretching over seventeen years whereby the executors (a) sought to defeat James Clark’s will made on 20th November 1985; (b) sought and gained personal advantages; (c) ran up over £700,000 of legal and professional expenses; (d) purportedly paid out the beneficiaries; (e) bankrupted the residual executry and (f) failed to provide sufficient funds for the creditors especially Mrs Joan Pentland-Clark who in abject frustration sold her rights to the pursuers. A sister action has been filed by the pursuers against the Mr John Hamilton McFie (the Judicial Factor appointed by Lord Dawson on 27th May 1999). A copy of the Initial Writ is herewith produced. The sums craved in this sister action are not part of this action although it is believed that the Judicial Factor may either seek to conjoin the defender and Messieurs Charles William Pagan, solicitor, and Patrick Collinge Gravatt Wilson to this sister action. Associate actions have been raised against Messieurs Charles William Pagan, solicitor, and Patrick Collinge Gravatt Wilson. Copies of these Initial Writs are herewith produced. The sums craved and condescended upon in these sister actions are similar but not identical. As a result of recent enquiries conducted on behalf of the pursuers it is perceived that Mrs Joan Pentland-Clark and her three children (Carolyn Elizabeth Clark or Sarris, born 23rd October 1960, Joanna Helen May Clark, born 15th June 1968 and James Clark, born 25th December 1969) by her marriage with the deceased James Clark are the victims of a sophisticated legal fraud orchestrated by Mrs Anne Meldrum Alison Clark (James Clark’s much younger childless second wife of short duration, namely three years and three weeks, being nee Kennedy and now Mrs Anne MacLehose); and Mr Patrick Collinge Gravatt Wilson; who were knowingly assisted by Mr John Simpson Wilson (solicitor) and unknowingly aided by Mr Charles William Pagan (solicitor). Explained that Anne Clark, James Clark’s second wife, and Patrick Wilson, James Clark’s best friend, were lovers both prior to James Clark’s death and post his death. Originally, Patrick Wilson held out to Anne Clark that following her successful occupation and acquisition of the late James Clark’s assets that he Patrick Wilson would divorce his current wife so he could marry the widowed Anne Clark. Anne Clark was twenty odd years younger than her husband James Clark. She had purportedly lead a fast life in London and appreciated and was looking for a good ‘Sugar Daddy’ (a rich older man). She explained away her mercurial mindset to the fact that her father had been bankrupted and in no way did she wish to experience financial hardship again. When shortly into their marriage James Clark became terminally ill with cancer she sought and obtained guidance from James Clark’s best friend Mr Patrick Collinge Gravatt Wilson. Patrick Wilson advised Anne Clark that she should down play James Clark’s illness and thus obtain time to enable him to engineer a ‘soft landing’ for her. In or about May 1985 Anne Clark and Patrick Wilson became lovers. Patrick Wilson, a man who had previously benefited from alleged trust irregularities and trust intromissions, promoted a scheme whereby Anne Clark abused her position of trust and whereby Patrick Wilson and Anne Clark took unfair advantage of James Clark’s deathbed state (documentary evidence showing that James Clark had repeatedly refused Anne’s and Patrick’s schemes till then) in that they purported that James Clark had knowingly and purposefully decided to disinherit his children and in furtherance of this purported dis-inheritance aim James Clark entered into an alleged partnership and lease agreement with his new wife Anne Clark. Patrick Wilson sought improper advice from John Simpson Wilson, a family solicitor at Kinross. Subsequent to James Clark’s death John Wilson also became part of the conspiracy to defraud the Clark children in that John Wilson turned a blind eye to the authenticity, witnessing and dating of documents Evidence in support of the above contentions was submitted to the pursuers overtly and covertly by members of the Clark; Wilson; Kennedy; Gulliver; Montcreiffe; Cochran and Mackie families by direct and indirect precognition, supported where possible by document or recording. For example forensic examination upon the partnership and lease agreements casts doubt on the authenticity of James Clark’s signature. In similar vein there are authenticity problems in much of the related correspondence and Patrick Wilson regularly lied to his and his paramour’s (Anne Clark) advantage as is shown on page 12 of the ‘Report of J H MACFIE to the Court of Session of 11th October 2000’. As a result of the defender’s breach of her fiduciary duty as narrated above Mrs Joan Pentland-Clark has suffered loss. A reasonable estimate of her losses are (a) the sum of £146,000 for her legal, professional and accrued fees plus interest from 19th April 2002 which constitutes the pursuers first crave; (b) the sum of £240,000 for her personal time and outlays between December 1985 and May 1999 plus interest from 19th April 2002 which constitutes the pursuers second crave; and (c) the sum of £100,000 for solatium in respect of the hardship and mental anguish suffered plus interest from 19th April 2002 which constitutes the pursuers third crave. The pursuers are concerned that there appears to have been dishonesty and possible misappropriation of funds and/or assets by the past executors. Given the past executor’s multiple roles, at the very least there appears to be a prima facie case of a gross conflict of interest and probable mismanagement. Thus the pursuers have raised proceedings against the other living past executors Mr Patrick Wilson; and Mr Charles Pagan. Furthermore they have raised proceedings against Mr J H MACFIE, the Judicial Factor. The defender has been requested by Mrs Joan Pentland-Clark to pay her. The defender refuses or at least delays to do so. This action is accordingly necessary. PLEA IN LAW The defender, both as an individual and as an executor for the estate of the late James Clark who resided at Nether Pitlochie, Gateside, Fife, being indebted to the pursuers in the sums sued for, decrees should be granted as craved. In respect whereof Martin Frost Party Edenside Kelso TD5 7BS Andrew McNamara Party 18 MacNicol Park, Kittoch Glen, East Kilbride, Glasgow G74 4QE Petition
to the Nobile Officium For authority to make an advance to the remaining creditor. COURT OF SESSION SCOTLAND Unto the Right Honourable Lords of Council and Session The Petition of Martin Frost with a place of business at Edenside, Kelso, TD5 7BS and Andrew McNamara with a place of business at Kittock Glen, East Kilbride, assignees of Mrs Joan Pentland-Clark of Danube Street Edinburgh, the sole remaining creditors of the sequestrated estate on the judicial factory of the late James Clark. This petition to the Court of Session (within its power under the nobile officium) is made by third parties as per the authority of Graham v Maconchie (1862) 24D and Grant v Cameron (1838) 16 S. Humbly sheweth:- 1. The Petitioners are the acknowledged assignees of Mrs Joan Pentland-Clark. (Vacation court: Lord Mackay August 17th 2002). 2. Lord Dawson by his interlocutor of 27th May 1999, herewith produced and incorporated herein brevitatis causa, sequestrated the executry of the late James Clark and appointed Mr John Hamilton McFie, solicitor within the firm of Bennett & Robertson of 16 Walker Street Edinburgh, as Judicial Factor ad interim. Furthermore Lord Dawson directed the interim judicial factor to receive representations from the Petitioner (Mrs Joan Pentland-Clark) and any other interested party and to report on possible action to restore the estate to solvency. 3. Mr John Hamilton McFie presented to Court a report dated 11th October 2000, herewith produced and incorporated herein brevitatis causa, on the executry of the late James Clark. In November 2000 Lord Eassie confirmed Mr McFie’s appointment and he was directed to act upon his report to restore the executry of the late James Clark to solvency. 4. Mr John McFie´s report stated that the executry was insolvent and furthermore that the executors had wrongly paid out the beneficiaries prior to settling with all James Clark`s creditors. The principal creditor to the estate, by virtue of a minute of agreement at the time of her divorce October 1977 (herewith produced and herein incorporated brevitatis causa) was Mr James Clark`s first wife, Mrs Joan Pentland Clark. 5. Mr John McFie administered the Judicial Factory for three years and presented the following sets of accounts, herewith produced and incorporated herein incorporated brevitatis causa, as audited by the Accountant of Court to account for his actions. These accounts show. (a) That the Judicial Factor has paid off the remaining creditors and quasi creditors (i.e. solicitors fees occasioned by the sacked executors in defending their actions and Mrs Joan Pentland-Clark’s Petition). (b) That the Judicial Factor has paid himself handsomely for meditation but almost zero activity in restoring the estate to solvency. (c) That the Judicial Factor has failed to meet Joan Pentland-Clark’s expenses relating to her petition for his appointment. (d) That the Judicial Factor has failed to in gather all the estates funds into his direct control. (e) That the Judicial Factor in terms of Mrs Joan Pentland-Clark’s monthly pension annuity of some £1,200 has only paid Mrs Joan Pentland-Clark one sum of five thousand pounds. (When her gross pension receipt entitlement over these three years should have been some sixty seven thousand pounds; as is delineated by the actuarial statement herewith produced and herein-incorporated brevitatis causa). In short, had Mrs Joan Pentland-Clark not sought and gained the court’s assistance but had allowed the old executors to continue to bankrupt the estate she would now be better off to the sum of eighty six thousand pounds (i.e. the sum of the costs of her original petition to Lord Dawson plus her arrears of monthly pension) and not now herself facing bankruptcy. 6. Mr John McFie currently holds some one hundred and forty thousand pounds in the Judicial Factory but refuses to release any funds to the petitioners as is stated by Mr John McFie`s in his answers to the Accountant of Court, herewith produced and incorporated herein brevitatis causa. 7. Upon the suggestion of the Accountant of Court, on August 17th 2002 the petitioners enrolled the enclosed motion, herewith produced and herein incorporated brevitatis causa, which came before Lord Mackay`s vacation court. At that motion roll hearing Lord Mackay determined that the motion roll was an inappropriate and incompetent procedure for the petitioners to follow in respect of the petitioners stated objectives. Lord Mackie while sympathising with the petitioners cause was unable to suggest to the petitioners an alternative procedure apart from suggesting that the petitioners and the judicial factor should be able to reach an amicable agreement. 8. No agreement has been reached. Despite being advised of the pending bankruptcy of Mrs Joan Pentland-Clark the Judicial factor has refused point blank to release to the petitioners any of the funds the Judicial Factor holds. Instead he has used the excuse that he now requires to hold onto all the funds held by the Judicial Factory. (a) To meet an illusory obligation to Lloyds insurers of London. (b) To fight off the Petitioners threatened legal action for negligence against the Judicial Factor. (c) To fund a legal action against the late executors of James Clark to restore the estate to solvency. These excuses lack substance as. (a) The Accountant of Court following an Inner House ruling advises that the Judicial Factor need not provide for Lloyds of London. (b) If the Judicial Factor is guilty of personal negligence it would not be a chargeable liability against the funds held by the Judicial Factory. (c) A reasonable estimate for an unsuccessful legal action against the executors would be but thirty thousand pounds which in any event the petitioners have agreed to underwrite or execute themselves. Such sum of thirty thousand the estate can pay even if the Judicial Factor is ordered to pay the petitioners as herein craved. 9. The petitioners in any event do not believe it is in the Judicial Factors interest to pay out funds as the Judicial Factor and or his legal practice makes hidden benefits from holding onto these funds. 10. In these highly unusual circumstances the staff at the Accountant of Court`s office were unable to assist the petitioners further apart from suggesting that a petition to the Nobile Officium may be the only procedure open for the petitioners to take. 11. Therefore this petition is presented to the nobile officium of the Court so far as concerns (a) the advance to the petitioners of the arrears of maintenance payments which were due to Mrs Joan Pentland-Clark together with accrued interest thereon at the rate of 8% per annum compound. (b) The re-instatement of the monthly income due to Mrs Joan Pentland-Clark. (c) The payment of the expenses incurred by Mrs Joan Pentland-Clark in respect of her Petition for the appointment of a Judicial Factor. May it please your Lordships (A) To appoint this petition to be intimated on the walls and in the minute book in common form and be served upon the Judicial Factor and Accountant of Court. (B) To ordain them to lodge answers hereto if so advised within seven days after service. (C) Thereafter on resuming consideration hereof with or without answers and after such enquiry if any as to your Lordships may seem necessary; to ordain the Judicial Factor (1) to advance to the Petitioners the arrears of maintenance payments due to Joan Pentland-Clark together with accrued interest thereon at the rate of 8% per annum compound. (2) To re-instate to the petitioners the monthly income due to Mrs Joan Pentland-Clark. (3) To pay the petitioners the expenses incurred by Mrs Joan Pentland-Clark in respect of her Petition for the appointment of a Judicial Factor. (D) To direct the expenses of this application and of all procedure to follow hereon to be a proper charge against the Judicial Factor personally. (E) To discern ad interim; or to do further or otherwise as your Lordships shall seem proper. According to Justice In respect whereof Martin Frost Andrew McNamara Schedule of Service 1.Mr John Hamilton McFie, solicitor , care of Bennett & Robertson of 16 Walker Street Edinburgh. 2.Mr T Thomson, the Accountant of Court, Parliament House, Parliament Square, Edinburgh. 3.The firm of Bennett & Robertson, 16 Walker Street Edinburgh. |
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