Court of Session (Outer House) — Anonymized Summary

Factual and Procedural Background

A discretionary trust ("Trust A") was established by the deceased Settlor. The principal asset of Trust A is a farming property ("Property A") that the Settlor had farmed and which passed to the trust under his will. The trust's trustees are Trustee A (the Settlor's widow) and the Respondent (Trustee B). The trust's beneficiaries, as described in the trust instrument, include (i) Trustee A, (ii) any other individual selected by the trustees, and (iii) any charitable or educational organisation selected by the trustees; no selection of an additional beneficiary has been made.

The Settlor left a letter of wishes addressed to the trustees expressing the hope that the farm would be made available to a young person wishing to pursue a career in farming.

Relations between Trustee A and the Respondent broke down. On 13 March 2019, following a petition presented by Trustee A, the court appointed Attorney Lamb as judicial factor (the "Judicial Factor") over the trust assets and granted him the "usual powers." The court did not sequestrate the estate into the Judicial Factor's hands; as a result Trustee A and the Respondent technically remain in office as trustees.

The Judicial Factor entered into administration of the trust. He now proposes to wind the trust up in favour of the sole discretionary beneficiary (Trustee A), having identified a purchaser for Property A. The Judicial Factor and the Accountant of Court support a proposal to sell the property and to vest the whole trust fund absolutely in Trustee A. A formal note seeking special powers to that effect was presented to the court.

The note was served on the trustees. Trustee A did not lodge answers. The Respondent lodged answers opposing the noter's proposal, averring that the trust purpose remains capable of fulfilment, that he is willing to select a beneficiary and has identified a suitable person, and that his answers exist to provide information for the court. The narrow procedural question before the court was whether the Respondent has the requisite title and interest to maintain those answers; the matter called for debate on that issue.

Legal Issues Presented

1. Whether the Respondent (as a trustee) has sufficient title to lodge answers and oppose the Judicial Factor's note seeking special powers (i.e., whether he is a party with a legal relation giving him rights that are infringed or denied).
2. Whether the Respondent has sufficient interest in the subject-matter to maintain his answers (i.e., whether his participation serves an intelligible purpose or will prejudice some legal right if excluded).

Arguments of the Parties

Noter's Submissions (Attorney Lamb)

• The Respondent lacks both title and interest to oppose the note; accordingly, the Respondent's answers should be repelled and struck from process.
• By reason of the appointment of a judicial factor, the trustees have been superseded as the decision-makers for the trust estate; it is immaterial that the estate was not sequestrated into the factor's hands.
• The appointment removed trustees' responsibility and title to make decisions; the Judicial Factor answers only to the Accountant of Court and the court, not to the trustees.
• Any authority relied upon by the Respondent (including Precedent A) does not address who presently holds management responsibility for the trust.
• Where trustees retain powers, they must act together (reference to section 3(c) of the Trusts (Scotland) Act 1921); a single trustee cannot litigate on behalf of the trust or defend proceedings alone.
• The appropriate remedy for any trustee dissatisfied with the Judicial Factor's management is to petition for recall of the Judicial Factor's appointment rather than to be heard in opposition to the note; the only party with a clear interest in the outcome is Trustee A (the proposed sole beneficiary).
• The Respondent's objections are managerial (who should receive the trust assets) and therefore of no substantial legal interest; the court should not permit anyone without a proper interest to intervene merely because they have a different view.

Respondent's Submissions (Attorney Macleod)

• The trustees have not been removed and the estate was not sequestrated; even if sequestration had occurred, it would not of itself have removed the trustees from office (relying on Precedent B and related authorities).
• There remains a possibility that the Judicial Factor could be recalled and the trustees restored to administration; accordingly the Respondent retains continuing title and interest (relying on Precedent C and others).
• The Judicial Factor is himself a trustee for the purposes of the Trusts Acts (as supported by Precedent I), so both he and the Respondent are parties in a legal relationship over the same trust estate.
• There is a distinction between proceedings directly against the trust estate and proceedings affecting trustees personally; an individual trustee can have duties and therefore a title in certain contexts (examples: petitions to appoint or recall a judicial factor, and actions to compel an accounting).
• The Respondent's interest does not need to be a personal patrimonial interest; as a continuing trustee he has an ongoing fiduciary interest and it is appropriate that there be a contradictor to the Judicial Factor's proposal (cf. Precedent H).
• The note had been intimated to the Respondent "for any interest which he has therein," indicating that the Judicial Factor considered the Respondent to have a continuing title and interest; in any event a contradictor is desirable where the Judicial Factor was appointed by Trustee A and she would benefit if the note is granted.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Precedent A (1867 5M 955)	Mentioned in argument; asserted by one party in support of a position relating to trustees' powers.	The court recorded that this authority did not directly address the central question in the present dispute—namely who currently holds management responsibility for the trust estate—and therefore is of limited assistance to the core issue.
Precedent B (1858 20 D 716)	Cited to support the proposition that sequestration may take the estate out of trustees' hands without necessarily effecting their removal.	The court noted that authorities are not uniform on that point but, because the estate was not sequestrated here, the possibility that trustees might be restored by recall remained live for present purposes.
Precedent C (1873 1 R 116)	Cited for the proposition that appointment of a factor does not necessarily negate a trustee's continuing title and interest.	The court relied on the general principle that the Respondent, as a continuing trustee in office (absent sequestration), retained a sufficient title to be heard on the pending note.
Precedent D (1915 SC (HL) 7)	Articulates the requirement that a litigant must qualify title and interest; contains the well-known dictum on "title to sue" and the need to show a legal relation giving rise to rights that are infringed or denied.	The court adopted this dictum as the guiding statement of the test to be applied when determining whether the Respondent had title and interest to be heard; it informed both the structure and outcome of the analysis.
Precedent E (1941 SLT 43)	Establishes that a person called as a defender has a right to lodge defences and to be heard (subject to the pursuer's right to challenge interest).	The court observed that a defender ordinarily may present defences but that the defender must still have title/interest to maintain them; the authority supported the proposition that procedural rights attach to a called defender.
Precedent F (1907 SC 1161)	Notes that "title" and "interest" are distinct concepts but frequently overlap in practice.	The court used this conceptual point to explain the interplay between title and interest in the present procedural contest and to justify considering both together.
Precedent G (1948 SC 656)	Explains that "interest" generally connotes some benefit from asserting or defending the right, or at least that the action or defence has an intelligible purpose and that some legal right may be prejudiced.	The court applied this definition as the standard for assessing whether the Respondent's answers served an intelligible purpose and thereby demonstrated sufficient interest.
Precedent H (1971 SC 295)	Provides authority relevant to the proposition that, in proceedings involving a judicial factor, it may be appropriate for there to be a contradictor.	The court relied on this authority to support the view that the Respondent could properly act as a contradictor to the Judicial Factor's proposal, given the particular facts of the case.
Precedent I (1954 SC 215)	Holds that a judicial factor is, for purposes of the Trusts Acts, to be treated as a trustee.	The court accepted the proposition that the Judicial Factor is himself a trustee; this supported the conclusion that both the Judicial Factor and the Respondent are parties to the same legal relationship over the trust estate.
Precedent J (1847 9 D 917)	Addressed in argument as suggesting sequestration might have the effect of removing trustees.	The court noted that authorities differ on that point (citing both this precedent and Precedent B) but, because sequestration did not occur here, the possibility of recall and restoration of trustees made the Respondent's continued title relevant.

Court's Reasoning and Analysis

The court began from the established requirement that a party seeking to participate in litigation must demonstrate both title and interest (as encapsulated in Precedent D). The court treated the present contest as a narrow procedural inquiry into whether the Respondent had the necessary standing to maintain his answers to the Judicial Factor's note.

On the question of title, the court observed that the Respondent remains in office as a trustee because the estate was not sequestrated. That factual point was decisive: it left open the possibility that the Judicial Factor's appointment could be recalled and that the trustees could be restored to administration. The court further relied on the proposition (Precedent I) that the Judicial Factor is himself a trustee for the purposes of the relevant Trusts Acts, which meant that the Respondent and the Judicial Factor were parties to a legal relationship as co-trustees of the same estate. Applying the dictum from Precedent D, the court concluded that this legal relationship furnished the Respondent with a sufficiently direct connection to the subject-matter to constitute title to oppose the note.

The court rejected a strict submission that the requirement for trustees to act by majority (or unanimity where applicable) bars every lone trustee from having title to litigate or defend in all contexts. It explained that there are well-recognised exceptions in which an individual trustee can be a litigating party (for example, proceedings to appoint or recall a judicial factor, or actions compelling an individual trustee to account), and that the Respondent's circumstances fell within the scope of matters where an individual trustee may properly be heard.

On the question of interest, the court reiterated that a trustee need not show a personal patrimonial interest to have standing in proceedings about the trust. Interest may be satisfied by an intelligible purpose related to the trustee's fiduciary duty or by the prospect that some legal right may be affected. The court found the Respondent's averments — that Mr. Settlor's letter of wishes deserved weight, that the Respondent had identified a candidate who might be selected as an additional beneficiary, and that the court could appoint an alternative trustee to resolve the trustees' deadlock — to constitute an intelligible and non‑frivolous purpose for participating.

The court also considered the practical context: the Judicial Factor had been appointed on Trustee A's petition and Trustee A would benefit if the note were granted. That alignment reinforced the desirability of having a contradictor in the proceedings. On that basis the court concluded that the Respondent was more than "anyone with a view" and that his answers served a legitimate legal purpose.

The court therefore concluded, on the combined application of the authorities and the facts, that the Respondent possessed both title and interest sufficient to maintain his answers. The court reserved the question of expenses and indicated that if the Respondent's conduct had merely prolonged the procedure he might later be liable in expenses; that question was left for another day.

Holding and Implications

Holding: The court refused the Judicial Factor's motion to repel the Respondent's answers. It held that the Respondent has both the requisite title and the requisite interest to insist in his answers and to act as a contradictor at this stage of the proceedings.

Direct consequences for the parties:

• A period of mutual adjustment of 28 days was fixed by the court, as agreed by the parties.
• The court declined to order further service of the note and answers on Trustee A (the widow/sole discretionary beneficiary), observing that she had already had an opportunity to lodge answers and had not done so.
• The court reserved the question of expenses of the hearing before it; the court noted that, should the Respondent's answers have unreasonably prolonged procedure, he may later be held liable in expenses, but that issue was not determined at the present hearing.

Broader implications: The opinion applies existing authorities on "title" and "interest" to the interlocutory context of a judicial-factor administration and confirms that (i) a trustee who remains in office may have a live title to oppose a judicial factor's proposals where sequestration has not occurred and recall is possible, (ii) a trustee's interest need not be patrimonial so long as the participation serves an intelligible purpose related to fiduciary duty, and (iii) a judicial factor, being a trustee for some statutory purposes, is part of the legal relation that may afford another trustee standing. The court did not purport to create new authority beyond the application of established principles and therefore did not lay down new precedent of broader scope.

Anonymization note: personal names, firm names and the property's geographical identifiers appearing in the original opinion have been replaced consistently with neutral role-based placeholders (e.g., "Trustee A", "Respondent", "Attorney Lamb", "Trust A", "Property A") in order to produce a fully anonymized summary based only on the content appearing in the opinion.