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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Brady v Messrs Neilsons [1999] ScotCS 5 (8 January 1999) URL: http://www.bailii.org/scot/cases/ScotCS/1999/5.html Cite as: [1999] ScotCS 5

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This action of damages, brought against a firm of solicitors for alleged professional negligence, came before me for debate on 9 December 1998 on the defenders' preliminary plea. The factual background to the action, as set out in the pursuer's pleadings, is somewhat unusual. In about 1982 the pursuer's brother and sister-in-law, Alistair and Norma Brady (afterwards referred to as "Mr and Mrs Brady"), borrowed £5,000 from the pursuer to enable them to purchase property in West Lothian known as Fernlea Holding. In order to lend this money to Mr and Mrs Brady, the pursuer required to borrow it himself. The defenders arranged a loan for the pursuer with the Royal Bank of Scotland. The pursuer then paid £5,000 to the defenders for the benefit of Mr and Mrs Brady. Mr and Mrs Brady agreed to repay this sum to the pursuer once they were able to do so. Because of their difficulty in repaying the loan, Mr and Mrs Brady conveyed part of the land at Fernlea to the pursuer. The land conveyed comprised an old stables building, which the pursuer used for storage. In about 1987 Mr and Mrs Brady sold their house at Fernlea. To enable the pursuer to continue to use the stables for storage, the defenders arranged for Mr and Mrs Brady to dispone an additional piece of ground to the pursuer. Both the disposition of the stables building, and the disposition of the access strip, were drafted and recorded by the defenders. During the 1980s the pursuer lent a further £3,000 to Mr and Mrs Brady to enable them to enter into a purchase of forestry land elsewhere in West Lothian along with a Mr Ferguson. In return, Mr and Mrs Brady agreed that when they had completed the purchase of the forest they would dispone a share of it to the pursuer. In about 1989 Mr and Mrs Brady told the pursuer that they required to borrow a further £5,500 to complete their purchase of the forest. The pursuer lent the money to them, borrowing a further £5,000 from the Royal Bank of Scotland for the purpose. Mr and Mrs Brady agreed to repay the money to the pursuer, and to dispone him a share of the forest once the purchase was completed. Shortly afterwards, Mr and Mrs Brady suggested to the pursuer that he should reconvey to them the land at Fernlea, so that they could build a house on it. The idea was that, once the house was built, Mr and Mrs Brady would be able to borrow sufficient funds from the Royal Bank of Scotland to be able to repay the pursuer in full. Dispositions reconveying the stables ground and the access strip to Mr and Mrs Brady were drafted by the defenders. The defenders sent the dispositions to Mr and Mrs Brady to obtain the pursuer's signature. The pursuer signed the dispositions on 4 December 1990 (that date is not averred in the pleadings, but it was a matter of agreement between counsel that I should proceed on the basis that that was indeed the date). Around 4 December 1990 Mr Neilson of the defenders telephoned the pursuer, and asked if it was all right for title to be transferred to Mr and Mrs Brady. The pursuer answered in the affirmative. The defenders sent the dispositions for recording, and they were duly recorded on 7 December 1990. According to the pursuer, the defenders did not give the pursuer any advice as to his own legal position, or inform him that he should seek legal advice elsewhere. They did not take his instructions as to the terms of the dispositions, their delivery or their recording. They did not explain to the pursuer the effect of the dispositions or of the transaction as a whole. They proceeded with the recording of the dispositions in the knowledge that no consideration had in fact been paid, or at least without checking with the pursuer that he had received any consideration. In due course the pursuer found himself unable to obtain repayment of the money he had lent to Mr and M

The action proceeds on the basis that the defenders acted as solicitors for the pursuer, as well as for Mr and Mrs Brady, in connection with the conveyance of the land at Fernlea in December 1990. The primary argument for the defenders before me, and the only argument insisted in at the close of the debate, was that the pursuer's averments were insufficient to establish the existence of a solicitor and client relationship. On behalf of the defenders, Mr MacSporran emphasised the absence of any averments of meetings or written communications between the pursuer and the defenders, or of the submission of any fee note by the defenders to the pursuer. Mr MacSporran founded on the observation of Lord Wylie in Bolton v Jameson & Mackay 1987 S.L.T. 291, 292K that a bare averment that solicitors were acting on behalf of the pursuer will not in itself suffice without a narrative of facts and circumstances leading to such an inference; and Mr MacSporran submitted that there was no such narrative in the present case.

In reply, Miss Cherry on behalf of the pursuer submitted that the inference that the defenders had been acting on behalf of the pursuer at the critical time could be drawn from four matters which were averred in the pursuer's pleadings. First, it was averred that the defenders had acted for the pursuer in arranging the original loan with the Royal Bank of Scotland. Secondly, it was averred that they had acted for him in December 1984 in connection with a road traffic offence, and had charged him a fee in respect of their services. Thirdly, Miss Cherry founded upon the telephone conversation around 4 December 1990. Finally, she founded upon an averment that it is normal practice, and a requirement of the Solicitors (Scotland) Practice Rules 1986, for a solicitor acting for one party to a conveyancing transaction not to issue to the other party any deed without informing that party that his signature may have certain legal consequences and advising him to seek independent legal advice before signature. Since the defenders had not complied with that requirement, Miss Cherry submitted that one could drawn the inference that they had regarded the pursuer as their client.

There is no doubt that in certain circumstances the existence of a solicitor-client relationship can be inferred from the conduct of the parties, even if there is no express agreement to that effect. Whether that inference can be drawn in any particular case depends upon the facts of that case. Decisions in earlier cases such as Bolton v Jameson & Mackay or Tait v Brown & McRae 1997 S.L.T.(Sh.Ct.) 63 are therefore of little assistance except as illustrations of particular circumstances in which the inference could or could not be drawn. The circumstances in any particular case will normally have to be ascertained by evidence. At the stage of a procedure roll debate, the Court has before it only averments of the bare bones of a case, whose purpose is merely to give fair notice to the opposing party of the case to be met. Accordingly, at the stage of a procedure roll debate, the Court will only be in a position to dispose of the action if it is immediately apparent from the averments, without any need for a fuller knowledge of all the facts and circumstances which could be proved within the scope of those averments, that the pursuer's case cannot conceivably succeed (cf. Miller v South of Scotland Electricity Board 1958 S.C.(H.L.) 20, 33).

In the present case, the important features which emerge from the pursuer's averments appear to me to be these. First, the conveyances in December 1990 on which the pursuer's case focuses formed part of a series of related transactions. The defenders had, according to the pursuer, acted on his behalf in the first of those transactions. They had also acted for him during the intervening period in relation to an unconnected matter. Most importantly, to my mind, Mr Neilson is said to have telephoned the pursuer around the date when the dispositions were signed and to have asked the pursuer if it was all right for title to be transferred to Mr and Mrs Brady. At first sight, this was a curious thing to have done if the pursuer was not Mr Neilson's client. It may have amounted to the taking of instructions from the pursuer; at the least, it suggests that the pursuer and Mr Neilson were not in an arm's length relationship. It would, I think, be of some materiality to know why Mr Neilson telephoned the pursuer, and how the telephone call was related (both in time and in purpose) to the signing and recording of the dispositions. These matters cannot be determined from the averments alone.

In the whole circumstances, I am unable to determine from the pursuer's averments that he has no case. That determination will require the elucidation of the facts by the normal process of taking evidence. I shall accordingly allow a proof before answer, reserving the defenders' preliminary plea.