Page:Margaret Hamilton of Rockhall v Lord Lyon King of Arms.pdf/30

 Greater Glasgow Passenger Transport Executive 1984 SC 32 (Vaughan"); and Anthony v Brabbs 1998 SC 894 (Anthony").

The indivisibility of the obligations in the Agreement

[52] Mr Lindsay turned to the defender's argument that Dr Lindberg also required to enter the process to vindicate rights under the Agreement. In Grange Trust's Trustees v City of Edinburgh Council Lord Boyd provided guidance on when it is necessary for all parties to a contract to seek to enforce its obligations and when it is permissible for one party alone to bring proceedings:

"15. The question is whether the pursuers have title to pursue this action at their own hand. The defender submits that the obligation is not divisible and therefore all the creditors must conjoin in the action. Gloag (at p203) states: 'If the action is for the enforcement of a contractual right which is in its nature indivisible, all those entitled to enforce the right must join in the action, no one creditor having a title to sue separately, and without the authority of the others.'

The authorities suggest that is the correct approach when the pursuer holds a pro indiviso share and the other shareholders are not party to the action. In Detrick and Webster v Laing's Patent, etc., Sewing Machine Co 1885 R 416 several owners of a patent made an arrangement with the owners of a similar patent providing for the mutual use of patented parts and payment of royalties. By the time of the reclaiming motion only Webster was left in the process. He held a six twelfth share of the patent. The court held that all parties must conjoin in the action. The Lord President said that where the action is founded on an agreement and nothing else when it came to enforcing the agreement all those who form one party must conjoin in bringing the action. In actions of removing all the proprietors must conjoin in the action; Gloag p203;. The same rule applies in a lease granted by a liferenter and fiar; Gloag supra;.

16. The issue then is whether or not the Trustees and the Club can be separated out as having different interests or whether they are to be regarded as one party in construing the rights under the Minute of Agreement."