18th October 2018
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Former optician sues wife and ex-business partner for £800,000

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A former Lerwick optician is suing his estranged wife and erstwhile business partner for more than £800,000, claiming that her actions after they went their separate ways
six years ago effectively left him out of work.

Brian Kelly, who with his wife Christine operated Kelly Opticians in the town’s Com­mercial Street for 20 years, is seeking the money because, he says, a court order taken out by her after their business partnership was dissolved in 2004 and he began operating as a sole trader had forced him to give up and leave Shetland.

He said the order had effectively prevented him from putting the lights on in the shop, never mind serving a customer, and he had to ask a member of staff to phone his wife to approve each transaction.

For her part, Mrs Kelly, who has been trading as C Kelly Opticians in the same premises since her husband departed, is alleging that she has been denied any money relating to her share of the original business which she had worked in since 1984.

A civil hearing at Lerwick Sheriff Court was told this week that Mr Kelly dissolved the partnership between them and went out on his own for seven months after the couple’s marriage began to break up in January 2004.

Mr Kelly instructed staff not to allow his wife into the premises from then on. He said he had received information that she had taken money from the business and put it into a separate account – a claim strenuously denied by Mrs Kelly. Mrs Kelly took over the running of the premises in August 2004 after Mr Kelly left the isles.

Much of the case focused on an interim interdict taken out by Mrs Kelly against her husband when he was a sole trader.

She had become concerned about stock being taken out of the premises after she was barred from entering the shop.

Sheriff Colin Scott MacKenzie – who has come out of retirement to preside over the case – heard Mrs Kelly took out the interdict ordering no stock be removed without her written consent.

Mr Kelly said the move would force him into bankruptcy. He walked out of the premises and later left the isles, telling staff they faced being paid off. He subsequently was made bankrupt, although not until much later in time.

Now Mr Kelly, who lives in Paisley, is seeking sums of £208,000 and £530,000 to reflect his share of the business. He is also seeking £80,000 in restitution of stock and £3,000 in interest.

Giving evidence, Mr Kelly told his advocate, Christopher Wilson, that the interim interdict had prevented him from even switch­ing on the lights.

“It meant I couldn’t move any of the assets whatsoever without first obtaining written permission from my wife, and therefore I would be unable to trade.”

He said on the day the interdict was issued he asked a member of staff to phone Mrs Kelly to ask permission for the first transaction to take place. She allowed the purchase to be made, he said.

However he added the staff member was given a less than welcome response when he re­peated the process for the second transaction.

“My wife said I was being stupid and bloody-minded about the whole thing,” he said.

Mr Kelly said legal advice had shown him that “by turning on the light switch I was breaching the terms of the interdict because I was dissipating assets”.

Asked by Mr Wilson what he did next, he said: “I packed my belongings into my brief­case and left the practice. I just went home. I have a farm and I just went there and worked. I stayed at home.

“Effectively my wife, when she was aware I had left the business, went into the business and began operating again.”

He said he had left “absolutely everything” behind in the premises, aside from a family photo.

Cross-examined by Mrs Kelly’s solicitor, Angela McCracken, he said he had initially hoped he could reconcile his differences with Mrs Kelly.

“My wife and I had been attending marriage guidance counselling. We had still been holding normal relationships and had been on a weekend holiday together.”

However he said he recalled telling staff members not to allow his wife into the premises.

“I do recall saying she shouldn’t be allowed in. Information had come to me that she had been taking cash from the business and putting it into a separate account.”

Mrs Kelly said she had no intention of driving the business into the ground, instead insisting she had been trying to protect it.

She said she had been effectively banned from entering the premises after her husband started running the business by himself.

She added Mr Kelly had told her she would receive “half of nothing” if she did not return to him.

“I told Brian. I said we couldn’t live together, but there was no reason why that should affect the children or the staff,” she said.

“I told him I could continue the partnership and support him in the business. It didn’t have to mean that everything was finished.

“He said ‘definitely not’. If I wasn’t going to stay at home with him then I’d have no part in the business and I wasn’t to bother coming back.

“A few days later he put a letter through my door saying the partnership had been dissolved. He told me verbally I wasn’t allowed to come through the doors.”

She said she was sent a letter from Mr Kelly, along with a £300 cheque, which said: “I am only too happy to let you arrange the details of sale of Kelly’s Opticians, the croft-land and matrimonial home.”

However she said she could not do that, as she had no access to the business.

Questioned by Mrs McCracken, she said she avoided going to the shop during working hours in case there was a scene.

“He [Brian] called me and said: ‘I need to speak to you about the valuation of the business.’ When I got there he’s brow-beat me and tried to force me to come home to the marriage. He used force to get his own way.”

She denied misappropriating money from the partnership, insisting: “I took money that was mine.”

“He used to say to me that I would get half of nothing unless I went back to him. He would not give me and the children a penny unless we were living with him.

“I thought the interdict was just to stop him doing a runner with the stock.”

The court also heard from Kelly’s practice manager, and qualified dispensing optician, Andrew Foyle.

He said he had attended the premises on a Monday morning to find the stock had been removed from it.

He telephoned Mr Kelly, who asked him to visit him at his home address. “He told me he was going bankrupt, that the practice was closing and that we [the staff] would be made redundant,” he said.

He said Mr Kelly changed his mind back and fore about whether he was staying.

However on the Saturday he “put on his jacket and left the practice. As the owner of the practice that was the last time he was there”.

Summing up, Mr Wilson told sheriff Scott MacKenzie Mrs Kelly had appeared to be trying to use the case as a means of “ventilating her frustrations at the marital difficulties, which of course are part of a separate action rather than to assist the court to determine the issues in dispute”.

He said Mr Kelly, in contrast, gave evidence in a straightforward manner and attempted to assist the court.

However Mrs McCracken said: “It is for the pursuer to prove his case on the balance of probabilities. The pursuer has failed to prove there is any payment due by the defender.”

Sheriff Scott MacKenzie will deliver his ruling at a later date.

In March 2004 a London optician appeared at Lerwick Sheriff Court to admit having assaulted Mr Kelly after discovering his wife had had an affair with him. Peter Alexander had flown to Shetland from London to confront Mr Kelly at his shop.

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About Ryan Taylor

Ryan Taylor has worked as a reporter since 1995, and has been at The Shetland Times since 2007, covering a wide variety of news topics. Before then he reported for other newspapers in the Highlands, where he was raised, and in Fife, where he began his career with DC Thomson. He also has experience in broadcast journalism with Grampian Television. He has lived in Shetland since 2002, where he harbours an unhealthy interest in old cars and motorbikes.

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