A BUILDER bankrupted seven years ago despite going to court with the cash to pay his debts has only now been advised that the sequestration was wrong in law and should never have happened.
Mr. James Ward, of Blantyre, was at the time owed £85,000 by Edinburgh Woollen Mills and had two witnesses to being at Hamilton Sheriff Court with the cash in his pocket on October 19, 1992, only to be told by the sheriff it was “too late for that now”.
Seven years later, after asking at least 20 firms of solicitors in Glasgow
and Edinburgh to examine his case, Mr. Ward has been told that he should
have appealed immediately and would have had the sequestration lifted.
The past seven years have seen Mr. Ward, who cares at home for a sister with cerebral palsy, powerless to stop further debts of £20,000 being run up by a bankruptcy trustee, who owns his house, and to his former lawyers Wilson Chalmers & Hendry who it now emerges failed to advise him that he could have had the sequestration lifted within 10 weeks, back in 1992.
And as long as the trustee has power over his assets, Mr. Ward is unable to conclude his case against Edinburgh Woollen Mills, which has already paid £75,000 into court in admission of its liability for the unpaid bill.
Now the Scottish Legal Aid Board is refusing to grant Mr. Ward aid to return to court to have his sequestration lifted, despite having conceded that it was wrong in law.
Mr. Ward’s case mirrors that of Edinburgh florist Ian Cross whose sequestration was lifted by Lord Osborne two years ago in an unprecedented judgement, but who has been refused legal aid to fight for compensation.
Mr. Ward’s £85,000 bill was run up for building work at Edinburgh Woollen Mills’ Antartex factory at Alexandria 10 years ago this summer. When EWM disputed the bill, an independent quantity surveyor reported that the job had actually been underpriced.
When a desperate Mr. Ward asked Hamilton solicitors J & Y Robertson to recover money from his own building suppliers, the only outcome was that Robertson petitioned for Mr. Ward’s sequestration.
When Edinburgh legal firm Connell & Connell took on the case earlier this year it applied for legal aid for a case to have the sequestration “reduced” – enabling Mr. Ward to escape from his trustee and put his affairs back where they were seven years ago. He is ready to pay off all his trade creditors from the proceeds of the commercial case which could then, at last, proceed to a settlement.
The Scottish Legal Aid Board said at first in February: “There is no support for the claim that he offered to pay the entire debt at the sequestration … the remedy of recall was open to him”.
When presented with evidence from accountant Henry Mitchell and quantity surveyor Tony Murray that Mr. Ward was at court with the money, and offered to hand it over, the SLAB changed tack. It responded on June 1 that “different reasons for refusal have emerged”.
It claimed that reducing the sequestration would not affect Mr. Ward’s debts to his trustee as he was discharged, and suggested that he should pursue his former solicitors Wilson Chalmers & Hendry for professional negligence.
Connell & Connell says that WC & H “failed to advise” Mr. Ward that he could and should have asked for the sequestration to be recalled within 10 weeks, but more importantly it was “not open to the sheriff to award sequestration”.
Mr. Ward said: “My trustee has full powers over me and my house, yet none of this should have happened. What about justice”?
Ms Fiona Munday at Connell & Connell said: “It is clearly a case where there was an absolute foul-up by the courts. He should never have been put in that position”. A review of the decision is being sought.
Mr. Ronald Munton, former senior partner at Wilson Chalmers & Hendry,
which is now dissolved, said he had no comment.