The Competency of the Action

Counsel for the second defender submitted that:

· the pursuer does not have title or interest to raise an action of multiplepoinding;

· no 'double distress' has been identified; and

· another form of action would have been appropriate.

On the question of title and interest, counsel for the pursuer submitted that:

· this is new matter;

· for which there are no averments;

· there is no supporting plea in law; and

· there is no notice to the pursuer or to the Court.

But article 2 of condescendence for the second defender contains a positive averment which shows that the pursuer does have right, title and interest:

'Believed to be true that The Union Planters Bank honoured its letter of credit and sent $300,000 to the First Defender. Believed to be true that the Pursuer's collateral was forfeited in satisfaction of his obligations to the bank.'

The pursuer has right, title and interest because he put money into HT, which put up the bond. The Court can simply infer that HT has assigned the debt to him.

As to competency of the action, counsel for the pursuer submitted that:

· there is no plea in law;

· there are no pleadings;

· there is no rule 22 note; and

· no notice of such a case has been given.

It is too late to raise this issue.

Put shortly, in my opinion the pursuer's submissions on these issues are well founded. Title and interest, competency and the form of the action are not raised in the second defender's pleadings or in a rule 22 note and it is far too late to raise such issues at proof.

In any event, for the reasons given above I am satisfied that the pursuer has suffered personal loss as a result of fraud perpetrated by the second defender and others. Therefore in my opinion it follows that he is entitled to claim the fund in his own right, without reference to an assignation by HT.

As to the form of the action, apart from any other consideration the second defender admits on record that a question having arisen as to the respective rights of the pursuer and the first and second defenders, this action is necessary. The second defender's submission seems to be that since the first defender has been discharged by agreement, and only two parties are left in the action, an action of multiplepoinding is no longer appropriate. If that is the submission, I reject it.

In addition, for the reasons given above I do not consider that under Clause 3.3 of the purported contract document the second defender was entitled to draw down the performance bond, in that the event which would have given the second defender the right to do so (i.e. failure to load the buyer's vessel by the 15th day after the buyer's vessel was in position for trans-shipment) had not occurred. Further, and in any event, I accept as sound the pursuer's argument to the effect that one cannot treat a contract as partially void. Even if I had held that there was a genuine contract between MPL and the second defender, CO&G, I would have sustained this part of the pursuer's argument.

I have granted the pursuer's unopposed motion for sanction for the employment of junior counsel.

Having reserved expenses in a previous interlocutor, I have assigned a hearing on that issue.

J.P. Scott

Edinburgh, 31st January 2009

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