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I) Did they live together in the same household?

In 1999 the pursuer bought and occupied a house at 101 Tippetknowes Road, Winchburgh. On the other hand WM owned and occupied West Cottage, Leslie, Glenrothes, which was a gift from his father in 1988. The pursuer said that they “kept their own addresses” during the entire 17 years, __ because she “had single occupancy” in Winchburgh and the deceased “had single occupancy” at West Cottage. Thus they each paid less council tax.

 

If the pursuer and WM lived together in the same household, where and when did this occur? The pursuer’s position on these issues varied. At different stages of her testimony she said that:

(i) she and WM lived together “mostly, sometimes” in her house, sometimes in WM’s cottage;

(ii) “We mostly were together, mostly at West Cottage”;

(iii) in the last few (or four) years before WM's death the cottage was classified as substandard, therefore she and WM “frequented Winchburgh a lot more”;

(iv) they were mostly together; and

(v) they stayed “more together than apart.”

 

The pursuer founded on her own testimony and that of her witnesses; on inference from medical, library and telephone records; on the presence of her car and belongings at West Cottage; and on the condition of West Cottage.

 

(a) Witnesses for the Pursuer

The pursuer’s sister, Mrs. Kathleen Feeney, deponed that when the pursuer was teaching in Fife she stayed at WM's cottage, which was convenient for the placement.

WM and the pursuer were fortunate to have two properties. At times when WM's cottage was uninhabitable due to renovations, he and the pursuer stayed at the pursuer's house. The pursuer asked, “Was one property the main property or did we live in both equally?” She replied, “I would say that depending on the circumstances, equally between both… I'd say probably more or less equally, depending on your circumstances.”

I noted the following exchanges in cross-examination:

Q. You don't know if they lived in one or the other?

A. If she didn't answer the phone in her own house, she would answer at William's…

Q. If a catalogue of witnesses say [sic] that over many years they never saw (the pursuer) at WM's house?

A. That's absurd.

Q. So you're saying they're lying?

A. I'm saying it's very unlikely.

She added, “I could phone constantly and speak to both of them.”

The pursuer and WM fell out from time to time, but she could not say how often. She did not see them every day. They didn't live in the same town. As noted above, I found the vacillating testimony of this witness to be unconvincing.

 

The pursuer's mother Mrs. Sarah Anne Quinton testified about the pursuer’s relationship with WM (largely, in my opinion, on the basis of what the pursuer told her) and her family’s affection for WM. But she did not advance this crucial element of the pursuer’s case with specific testimony as to where and when they lived together during a specific period immediately before WM’s death. In any event, as I have noted above, I do not regard her as a reliable witness and I have some doubt about her credibility.



 

Francis Kynoch, a Winchburgh neighbour and good friend of the pursuer, said that he formed the impression that the pursuer and WM "were a couple." They lived at 101 Tippetknowes Road, Winchburgh. Otherwise the pursuer would be with WM at his cottage in Fife. He last saw WM at the pursuer’s house in Winchburgh in October 2007. He was going on holiday for two weeks (although he could not remember if his holiday began on the first or second week of October) when WM and the pursuer agreed to look after his dog. While he was on holiday he telephoned the pursuer's Winchburgh number to find out how the dog was. She was not in, therefore he called WM's cottage. He did not speak to the pursuer. WM told him that the pursuer was at a car auction. The witness deponed that he would be unable to dispute evidence to the effect that during the holiday WM stayed at the pursuer’s house at Winchburgh on the 10th of October, but no other night during the witness’s holiday.

While I accept that the witness was honest, and that he was broadly reliable concerning events occurring around the time of his holiday in 2007, I do not regard him as reliable on the greater disputed issue, viz. his impression that the pursuer and WM were a couple in the sense of living together as if they were husband and wife at 101 Tippetknowes Road, Winchburgh. That impression is contradicted by an overwhelming body of evidence that I accept, including the testimony of people who were in a better position to know if the pursuer and WM were living together in 2007.

 

Like her husband, Mrs. Mary Finlayson Kynoch is a good friend of the pursuer, whom she has known for 17 years. She considered that the pursuer and WM had a very close relationship. She last saw WM in October 2007. She was going on holiday and she and her husband took their dog to the pursuer at 100 Tippetknowes Road, Winchburgh. While they were on holiday her husband called WM at his cottage to enquire about the dog. He spoke to WM by telephone.

 

While I accept that the witness was honest, I do not regard as reliable her impression that in October 2007 the pursuer and WM had a very close relationship. Her impression is contradicted by an overwhelming body of evidence that I accept, including the testimony of people who were in a better position to know if the pursuer and WM were living together in 2007.

 

(b) Witnesses for the Defender

The defender deponed that WM worked on oil rigs until the early 1990s when he sustained a back injury in respect of which he received state benefits. From the time that WM stopped working on oil rigs the witness was in touch with him every week, sometimes twice a week. He visited WM at West cottage, sometimes once a month, sometimes twice a month. “It was never regular, but on a sort of constant basis.” The defender never saw the pursuer at West Cottage. There was no evidence (e.g., female clothing, a toothbrush) that anyone other than WM was staying at the cottage.

Put shortly, his position on this issue was that:

  • The relationship between the pursuer and WM was very stressful and a “very on-off relationship”, they saw one another on occasions and they never went out regularly;
  • “It was finished often”;
  • He spoke to WM on average about twice a week, but WM rarely talked to him about the pursuer; and
  • WM was at home most of the time, working on his cottage.

Since 1994, the defender had never seen the pursuer during any of his visits to West Cottage.

In cross-examination the defender deponed that on many occasions he and his wife asked WM if he wanted to invite anyone to family events and WM said, “No.”

I noted the following exchanges:

Q. ‘Do you remember, Mr. McClung, that you said to William, “William, I will be so happy when you come and say that you and Jacqueline are going to be married. And I'll crack open that bottle of malt”?’

A. ‘No. William never said that to me. And that phrase you mentioned there … I never would say that I would crack open a bottle of malt, because I do not drink whisky. And if I was going to crack open anything on a happy occasion, I would open a bottle of champagne. But I never said that phrase that you have said.’

 

Q. ‘You said that William and I did not go out regularly?’

A. ‘Yes. I said that.’

Q. ‘That was our choice?’

A. ‘Well … That wasn't normal for a happy, loving couple, was it?’

The pursuer responded, “It was to us.”

Q. ‘Did William ever indicate to you that he was residing at 100 Tippetknowes Road?’

A. ‘No. On odd occasions I would phone his house and never got an answer. But I never knew, and was never told, where he was going. It could have been any place. He never said he was residing at Tippetknowes, because I never knew that address.’

The defender did not know about WM and the pursuer cohabiting at the pursuer's house at Tippetknowes Road, Winchburgh. He went away for a day or two. He could have been staying with the pursuer. The defender spoke to WM twice a week on average, mostly on his landline.

 

The defender did not remember the pursuer answering WM's telephone when he called WM at West Cottage. The defender denied that he had phoned the pursuer's address at Tippetknowes Road in order to speak to William, and that the pursuer had answered the call. He did not know her telephone number.

 

John Paul occupies a farm at Leslie. To get to the main road from his farm he has to pass West Cottage. He saw the pursuer at West Cottage on occasions, for example having coffee in the garden. She did not visit the cottage often. He guessed that he last saw her there at about the end of May or beginning of June 2007. Her car was there on occasions, __ some nights and weekends. Years before, it had been there more regularly. He last saw the pursuer at least 1½ to 2 years before WM died. The witness knew that the pursuer lived in Midlothian [sic].

 

Andrew Johnston had known WM for many years. He was in WM’s cottage about once per month and he talked to WM by telephone two or three times per week. When he was working in Leslie he used to visit WM and have a cup of coffee. He had seen the pursuer and WM together at West Cottage “…years ago, on occasions. I’d say 99% she wasn’t there.” The pursuer never answered the telephone at West Cottage. Only a small part of West Cottage was being used. The witness did not see any ‘female accoutrements’ there.

He asserted that the pursuer never resided with WM as long as he had known WM.

 

John Baird had known WM for about 20 years. He saw him fortnightly, perhaps more frequently in earlier years. He went to West Cottage perhaps every three weeks, or less frequently latterly. He knows the pursuer, but they rarely met. He saw her at West Cottage maybe once in the last two or three years before WM’s death. He also met the pursuer and WM at a market in May 2004 or 2005. He did not get the impression that the pursuer and WM were living together as man and wife. Cross-examined, he said that although it was hard to recall, he had seen the pursuer at West Cottage perhaps four or five times in sixteen years.

 

WM’s sister, Victoria McClung, lives in Forfar. At the time of WM’s death she was very close to him and they spoke by telephone weekly. In the month before his death she met him three times. In the months before his death WM spoke to her about his relationship with the pursuer. He mentioned that he was unhappy.

WM began to renovate his cottage in 2004. The witness had last met the pursuer in 2004 at WM’s house. The witness had been to WM’s cottage on many occasions but only saw the pursuer there once, __ in 2004. Prior to that, they had last met in the early or mid 90s.

Mrs. Isobel McClung, the defender’s wife, said that she got on very well with WM, her stepson, who confided in her “sometimes, but not a lot.” In the six months before WM died the witness visited him at his cottage roughly every two or three weeks to see how the work was progressing. She never saw the pursuer at the cottage. WM never said that the pursuer made herself scarce because she did not get on with the witness. She did not see any female accoutrements or photographs of the pursuer in the cottage.

 

From about September 1990 until about 1996 Mrs. Marcella Macpherson or Macdonald resided at East Cottage, Meikle Balquhomrie, Leslie, which adjoins West Cottage. WM was her neighbour. During that period she “knew of” the pursuer, whom she “sort of” recognized in court. The pursuer visited WM there on occasional weekends. They never lived there as a couple.

 

In 1996 the witness moved to Inverness. She returned to check East Cottage once per month. Her daughter (witness Anne Macdonald) continued to live at East cottage. In the summer months on average the witness visited her daughter weekly. In the winter she visited once or twice a month, depending on her shift pattern. The witness returned to live in the cottage again in November 2007.

 

Between 1996 and 2007 she saw WM on occasions during her visits but she did not see any change in the occupancy of West Cottage. During that period the witness could remember seeing the pursuer there twice. On the Sunday before his death she saw WM working outside the cottage. She did not see anyone else at the cottage.

Mrs. Marcella Macdonald’s daughter, Anne Macdonald resided at East Cottage, Meikle Balquhomrie, Leslie, from October 1990 to May 1996 and from October 2003 to December 2006. From 2003 to 2006 WM was her next-door neighbour. As far as she was aware, nobody else stayed in West Cottage. She had five children. She stayed in East Cottage every night for 2 ½ years, until she separated from her husband.

 

On moving into East Cottage as a child she was aware of the pursuer’s friendship with WM. At that time she saw the pursuer frequently. When she moved back in 2003 she did not see any sign of the pursuer.

 

On the 5th of November 2003 WM and the pursuer had a bonfire at West Cottage and she saw the pursuer there. She did not see the pursuer again until 2004. She thought that WM and the pursuer “had finished.”

 

In May or June 2004 she saw WM and the pursuer together in the supermarket in which she was working. She was “a bit surprised.” When she went home she remarked to her husband that Jacqueline must be back on the scene. She had not seen her since the previous November. Two cars were parked in WM’s driveway, one of which was WM’s. She assumed that the other was the pursuer’s. She did not see the pursuer’s car there after that, nor did she see the pursuer again until she came to court for the proof.

 

From 2004 onwards she never saw the pursuer at West Cottage. But she saw WM regularly. They exchanged cards at Christmas. Her husband and WM did quite a lot of work together in their gardens. WM never spoke to her about the pursuer.

 

Robert Brannan knew WM as a friend for at least 30 years. They lived 500 yards from each other. There was no pattern to the frequency with which they visited each other. He kept an eye on WM’s home if he was away. In the three months before WM’s death he saw WM two or three times at least.

 

Cross-examined, he said that he visited WM’s cottage two or three times per month. There were no set times. He saw the pursuer at the cottage twice: once when they were introduced and on one other occasion four years prior to proof when the witness’s daughter had died. During the funeral the pursuer looked after the cottage, which is opposite the witness’s house.

 

WM’s uncle, Edwin Ivan Wood, lives roughly three or four miles from West Cottage. He helped WM with work on the renovation, which began in 2004. At that time the witness saw WM “very, very regularly”, __ twice, sometimes three times per week. He said, “It was a bachelor’s pad. It wasnae really habitable for anyone other than a bachelor.” Nobody else lived there. He was not aware of anyone else living there at any point. He saw the pursuer at WM’s cottage only once, __ in June 2007.

 

(c) Documentary Records

The pursuer sought support for her case in medical, library and telephone records.

She averred that she was registered with certain services at Leslie and that WM was registered in Winchburgh.

 

Library Records

6/6/1 of process is a letter dated 7th April 2010 from West Lothian Council library services manager to the defender in which the manager confirms that:

‘…your late son, William S McClung, is not registered on our library management system as one of our borrowers.’

The pursuer’s explanation was that if the borrower does not attend, the library only keeps his record for two years. In the absence of confirmation from a library official I do not accept that explanation.

 

5/3/2of process is a form issued by Fife Council Libraries indicating that the pursuer registered at Glenwood Library on 11th November 2003, her address being recorded as West Cottage, Miekle Balquhomrie, Leslie. The pursuer deponed that the library is situated five miles from WM's cottage.

 


Medical Records

The defender deponed that WM was registered with Doctor Carr in Leslie. The defender was asked about WM being registered at Winchburgh Health Centre. In response he referred to 6/6/2of process, a letter dated 20th April 2010, addressed to him and apparently from a Dr. Annabel Ross (although signed ‘Reception’) of Winchburgh Medical Practice. The letter is in these terms:

‘Further to your recent letter I can confirm that we have checked our computer database and have no record of your son (William McClung, D.O.B 17/04/1960) having been registered with this practice.’

Asked to explain, the pursuer said, “He's not on the computer database.”

Asked why she told her lawyer that he was, she replied, “It's the system. He was registered at Winchburgh Pharmacy. The prescriptions were by Winchburgh Health Centre. The pharmacy said he was registered there. They said they couldn't give me the information.

The following exchange took place:

Q. ‘If they issued a prescription he would have to be a patient?’

A. ‘There's obviously been a problem.’

Q. ‘The problem is that it's a complete lie, a fabrication?’

A. ‘The pharmacy said, “Yes. Mr. McClung is down here.” The pharmacy had him registered. I don't understand what the system is. William is still registered with the pharmacy.’

In the absence of independent support, e.g. from the pharmacy, I reject the pursuer’s assertion as improbable and untrue.

 

5/3/1 of process is a letter dated 17th September 2008 from Dr. W.D. Carr of Leslie medical practice concerning ‘Jacqueline Carrigan, West Cottage, Balhomrie [sic] Farm, Leslie, KY6 3JL, 22/02/1964 which reads:

‘I certify that this lady was registered as a temporary resident in 2004 at the above address. This registration would be in force for three months. I can also confirm that she was treated on the 10/03/1995 and 15/08/1996 although I have no record of registration at that time.’

 

Telephone Records

The pursuer founded on 6/1/1 of process, a telephone bill of 18th November 2007 addressed to WM in respect of his landline at West Cottage. The pursuer asserted that she made many phone calls from WM’s landline, “…substantiating that I was living with William and was not living alone.” She claimed between 21st August and 29th October 2007 she made nine of the calls listed in the bill. She hoped that it proved that she was living with WM.

 

(d) The Pursuer’s Belongings at West Cottage

I am in no doubt that some of the pursuer’s belongings (including some clothing) were in West Cottage when the relationship came to an end. In the transcribed telephone conversations the pursuer and WM discuss arrangements for uplifting them. Moreover the defender confirmed that after WM’s death items belonging to the pursuer were in her car at West Cottage. WM had put them there to be picked up with the car.

 

(e) The Condition of West Cottage

I accept the evidence to the effect that WM cooked in a microwave oven and that from 2004 onwards West Cottage was fit only for habitation by a bachelor.

 

Conclusion

I am not satisfied that the pursuer and WM ever lived together in the same household for any period which was significant in relation to the disputed issue before me. On this matter I prefer the testimony of the defender and his witnesses to that of the pursuer and her witnesses. Nor am I persuaded that the documents founded upon by the pursuer support her case in that regard. On the contrary, some of those documents undermine her case.

 


Date: 2015-12-11; view: 918


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