19th September 2018
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Former Lerwick optician loses civil action for £800,000 from business

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A former Lerwick optician has lost an £800,000 civil action against his estranged wife and former business partner.

However Brian Kelly, who ran Kelly Opticians in Commercial Street with his wife Christine for 20 years, intends to appeal against the ruling by Sheriff Colin Scott MacKenzie.

During a hearing in September he claimed a court order taken out by his wife in 2004 after their business partnership was dissolved following their separation effectively left him out of work.

Mrs Kelly had insisted the interdict was to prevent him from personally taking stock from the premises.

But Mr Kelly said the order prevented him from turning on the lights in the shop, never mind serving a customer.

He was seeking sums of £208,000 and £530,000 to reflect his share of the business, along with £80,000 in restitution of stock and £3,000 in interest.

The hearing heard the couple’s marriage began to break up in January 2004, after which Mr Kelly instructed staff not to allow his wife into the premises.

But he left the isles in August that year, at which point Mrs Kelly took up the running of the business.

For her part, Mrs Kelly alleged she had been denied any money relating to her share of the original business.

In his ruling the sheriff stated that Mr Kelly had lodged his claim over five years after leaving the premises – too late under the terms of the Prescription and Limitation (Scotland) Act 1973.

Although Mr Kelly had left the isles in August 2004, the action against Mrs Kelly was not made until September 2009.

The ruling stated: “That [the act] states that if after ‘the appropriate date’ an obligation … subsists for a continuous period of five years without any relevant claim being made in respect of the obligation and without it being relevantly acknowledged then as from the expiry of five years the obligation is extinguished.

“As according to Miss McCracken [Mrs Kelly’s solicitor] no relevant claim in respect of the craves in this action was made until 29th September 2009 – the date of Warrant of Citation herein – more than five years had elapsed without interruption of the prescriptive period or acknowledgement of the claims, therefore all such claims as set forth in the Record have lapsed and are extinguished.”

Mr Kelly’s advocate, Christopher Wilson, had argued divorce proceedings between the couple had interrupted the prescriptive period well within the five years.

However the ruling states “no direct evidence” of any claims for financial re-arrangement within the divorce action.

“Accordingly … he [Mr Kelly] has failed to make his claim timeously, distinctly or sufficiently explicitly within the meaning of the 1973 Act and it follows that the defender is absolved from the craves of the writ.”

The sheriff, who came out of retirement to hear the case, added any assets which could have been identified as “good-will” would be no more than £78,000 – the sum paid for the business in May 1986.

“Were it not for the matter of prescription I would have asked for a report on its valuation from an independent man of skill,” the findings state.

“If it were only open to me to consider the figures which have been placed before me then … I have to say that I cannot see why we should go past the figure of £78,000.”

He awarded expenses to Mrs Kelly.

Speaking to The Shetland Times, Mrs Kelly said she had only ever wanted “an amicable agreement”.

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