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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Morris v Highland Spring Ltd [1998] ScotCS 69 (18 November 1998) URL: http://www.bailii.org/scot/cases/ScotCS/1998/69.html Cite as: [1998] ScotCS 69

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The pursuer supplies engineering design services. In this action he claims payment of the sum of £41,807.28 arising out of work executed for the defenders at their premises at Blackford in Perthshire. The work was executed in two phases, Phase A and Phase B. The terms upon which the parties contracted were reduced to writing in letters dated 12 April 1990 and 14 December 1990 referring to each phase respectively. These terms, contained within productions 21/1 and 21/20, were substantially the same in each case. The pursuer's claim for payment is essentially divided into three broad parts - claims for payment under the contract (or more accurately contracts) on essentially two different bases and a claim for work said to have been instructed and executed outwith the contracts altogether.

In relation to Phase A the pursuer's first contractual claim (hereafter referred to as "the basic contractual claim") is supported by general averment that the pursuer carried out works defined in the schedule headed "Scope of Works", after which there is listed a series of invoices (produced as Nos 21/2 to 21/18 of process and incorporated into the pleadings) which bring out a total sum due of £64,643.86, comprising fees of £49,000, expenses of £7,212.06 and VAT of £8,431.80. Secondly, the pursuer also claims to have carried out works which were outwith the Scope of Works but instructed by the defenders in accordance with clause 6 of the contract (hereafter referred to as "the additional contractual claim"). Reference is made to an invoice in the sum of £5,037.30 (made up of fees, expenses and VAT) and there is averred on Record in greater detail in lettered paragraphs from (a) to (j) on pages 8, 9, 10 and 11 of Record what the work is said to have entailed. Notwithstanding the sums claimed by the pursuer it is averred that the defenders have paid only £49,000. It is not said when this sum was paid or that any particular invoices (or parts of invoices) were specifically met.

So far as Phase B is concerned the pursuer also claims to have carried out works defined in the schedule headed "Scope of Works" ("the basic contractual claim") and to have carried out works which were outwith the Scope of Works but instructed by the defenders in accordance with clause 6 ("the additional contractual claim"). There is listed a series of invoices which it is said were submitted (these invoices being produced as Nos 21/21 to 21/32 of process and incorporated in the pleadings) for a total sum of £51,164.50 comprising fees of £39,799.25, expenses of £4,488.98 and VAT of £6,876.27. It is averred that the fees in respect of the additional contractual claim amounted to £6,190 although it is not said which invoice or invoices of those listed refers to them. There is, however, also provided further detail, again in numbered paragraphs (on page 12 of Record), of what the works underlying the additional contractual claim entailed. The pursuer avers that the defenders have paid only the sum of £35,000 in respect of Phase B, although again it is not said when said sum was paid or that any specific invoices (or parts of invoices) were met.

In addition to the contractual claims the pursuer claims to have carried out works to the instruction of the defenders outwith the terms of the contract. These are set out between pages 12 and 14 on Record, detailed averments as to what was done being supported by invoices produced (Nos 21/33 to 21/40 of process incorporated in the pleadings). The pursuer's claim overall is thus for the balance of sums due under the contracts relating to Phases A and B and sums said to be due outwith the contract.

The defenders' basic position on Record appears to be that it is not known and not admitted that the pursuer has carried out the services condescended upon. There is a specific averment to the effect that esto the pursuer has incurred expenses conform to the invoices produced (which is not known and not admitted) the said expenses are not expenses for which the defenders are liable. The defenders accept that they have paid the pursuer the sums of £49,000 and £35,000 respectively (again without any explanation of when or in what circumstances or in respect of what invoices said sums were paid). They also claim to have paid VAT thereon - an averment apparently denied by the pursuer's general denial. The defenders also claim that the contract expressly provided that the pursuer's maximum fee for providing the services thereunder would be £49,000 (excluding VAT and expenses) and £35,000 (excluding VAT and expenses) respectively and maintain that these figures imposed a ceiling on any contractual claims (at least in respect apparently of fees).

The case came before me on procedure roll when counsel for the defenders advanced arguments in support of the defenders' first plea-in-law, a general plea to the relevance and specification of the pursuer's averments. The attack that was made was essentially one on the alleged lack of specification in the pursuer's pleadings. The argument was carefully presented in respect of each of the elements in the pursuer's claim, and it was accepted that it was necessarily a matter of degree in cases such as this as to what was required of a pursuer to give fair notice to defenders. There was no doubt, it seemed to me, that the main thrust of the attack that was made was on the averments relative to the basic contractual claims. Leaving that aside for the moment, although counsel also attacked the specification of the extra contractual claim, it seems to me clear, without rehearsing the detail of the argument, that the pursuer has averred enough in respect of this element of his claim to entitle him to a proof before answer as regards that part of the case. As with any averments no doubt more could have been added but I am satisfied that enough detail has been provided to give the defenders fair notice of the case they are expected to meet.

The position, it seems to me is effectively the same in relation to the additional contractual claims, the averments in support of which were also attacked. Having regard to the way the claims are presented, however, it is not possible without considering the adequacy of the averments in respect of the basic contractual claims to conclude that the pursuer has averred a sufficiently relevant and specific claim for additional contractual payments to entitle him at least to proof of those elements of his claim. In particular, unless the pursuer has in respect of each phase made a sufficiently relevant and specific case for the basic contractual claim to an extent that when the additional contractual claim is added he would be entitled to a sum over and above that which he has averred has been paid he would have no claims to payment under the contract. Overall, therefore, the fate of the claims under the contract are tied to the specification of the basic contractual claims. That appears to be particularly true in relation to Phase B where no invoices have been particularly identified as relating to the additional contractual element.

As regards the pursuer's basic contractual claims his position is, it seems to me, more difficult. The argument against his position was that it was not enough to be told that invoices had been issued where the invoices, save perhaps Nos 21/21, 21/22 and 21/23 of process, contained no more than assertions that services had been carried out and expenses incurred. In particular it was said there was a complete lack of notice as to what expenses were being claimed and no indication that they could truly be said to be expenses under the contracts which (in clause 10) provided only for "disbursements properly made" in connection with five enumerated matters to be recoverable, for example plan printing, photocopying and purchase of all necessary documents etc. The contracts did not, it was argued, allow for the recovery of all expenses, for example expenses of the costs of any tests. A broad contrast was drawn with the greater specification given in respect of the additional contractual claims and the extra contractual claim.

On behalf of the pursuer it was argued that enough had been averred to entitle him to a proof before answer. It was recognised that there was an apparent difference in the degree of specification offered as regards the basic contractual claims but greater specification had been given where it was thought there was real dispute between the parties. It appeared from the sums which had been paid that the basic contractual claim was not seriously disputed save perhaps in relation to expenses. The invoices gave enough detail and were in the form provided for in the schedules to the contracts.

While I have sympathy for the position of the pursuer in the light of the somewhat equivocal position adopted by the defenders, it does seem to me having regard (a) to the way the case has been presented by him - that is first setting out the total work and expenses for which payment is said to be due, then describing a total sum which has been paid without specifying that specific invoices were met and thereafter seeking the balance - and (b) to the apparent position of the defenders - apparently not accepting that work was done to the extent claimed or that any of the claimed expenses were due - that some further specification is needed as a matter of fair notice. On the face of it the pursuer will require to prove an entitlement to payment of all the fees and expenses which he has claimed (to entitle him to claim the outstanding balance). In these circumstances it seems to me that the pursuer as a matter of fair notice requires at least to aver in broad outline what work was done for which the fees have been claimed and the nature of the relative expenses incurred - and at the same time to indicate which invoice or invoices relate to the additional contractual claim in respect of Phase B. Certain of the invoices refer to apparent job costing statements said to have been attached although these were not lodged and counsel for the pursuer fairly accepted that he was not seeking to found upon them. It may be, however, that these would assist in giving some part of the further specification desired. Alternatively, if the pursuer was able to aver clearly that certain specific invoices had been presented and apparently met in full, further specification would on the face of it only be needed in respect of those outstanding invoices which had not been so met. It appeared to be accepted that if I took the view that some further specification was needed in respect of all or part of the pursuer's claim it would be appropriate to put the matter out By Order, and this I propose to do.

A further argument was advanced by the defenders to the effect that insofar as the pursuer appeared to claim fees under the contract in respect of Phase A above £49,000 and Phase B above £35,000 (in particular the fee elements of the additional contractual claims - said to relate to works instructed under clause 6 of the contract), these claims were not relevant since, as a matter of construction of the contracts, a maximum ceiling of those figures had been imposed in each case. Ultimately, however, counsel accepted, as I understood it, that even if that argument was right the pursuer would be entitled to seek to prove the relevant work as work for which he was entitled to seek payment under the contract (in circumstances where he might not prove the basic contractual claims so far as fees were concerned, up to the maximum figures provided). He therefore did not seek to pursue the argument directly at this stage and in particular did not seek to delete from probation on that basis the averments made in respect of the fee element of the additional contractual claims. Both parties were agreed, however, as I understood it that the views of the Court, albeit necessarily obiter on this matter, would be helpful.

The structure of each contract was that a schedule set out the Scope of Work - describing the range of professional services to be provided by the pursuer and those Building Services in respect of which those services would be provided. Clauses 1 and 4 provided detail as to how the design and supervision functions were to be executed. Clauses 3 and 5 provided detail as to how instructions were to be given by the defenders and for an exclusion of liability for works performed by others. Clause 2 provided:

Clause 6 provided:

Clause 10 provided for fees and expenses to be chargeable in accordance with the scale of charges set out in the attached schedule, wherein the pursuer's "estimated man hours for the various sections of the work" was set out in detail - adding up to a total of £49,000 in respect of Phase A and £32,033 in respect of Phase B. Clause 11 provided (in respect of Phase A):

There was an identical clause in relation to Phase B with the substitution of the sum of £35,000. It was accepted by both counsel, as I understood it, that under clause 6 the defenders would be entitled to instruct the pursuer to perform the additional services referred to in that clause and that in that clause those "additional services" would refer to services outwith the Scope of Works.

Against that background counsel for the defenders argued that as a matter of language "the services hereunder" referred to in clause 11 (in respect of which a ceiling was imposed) referred to all services in respect of which claims might be made under the contract - save possibly work executed under clause 2. Services instructed under clause 6 would be included. The objective of any services contemplated in clause 6 was to expedite progress of the works and such services could replace those originally contemplated.

On behalf of the pursuer it was argued that in circumstances where the language of clause 11, in particular "the services hereunder", was open to different interpretations, that interpretation should be preferred which avoided the apparently extraordinary position (to which it was said the pursuer would never have agreed) that the pursuer would be obliged to execute what could be substantial, additional services under clause 6 (which by definition had not been specifically envisaged) and yet still be restricted overall to the ceiling fee notwithstanding that it was evident that he had taken some care in the detailed schedule to estimate what his overall fee for the anticipated services in the Scope of Works was likely to be - being exactly £49,000 in respect of Phase A and a little short of £35,000 in respect of Phase B. It was argued that clause 6, just as much as clause 2, plainly contemplated additional services for which additional fees would be chargeable.

I have no doubt that the arguments advanced by the pursuer on this matter are to be preferred - and that the pursuer would be entitled to claim fees over and above the ceilings in respect of what, it seems, were plainly contemplated as "additional services".

As indicated above, however, I shall put the case out By Order.