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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Crooks (AP) v Messrs Lawford Kidd & Co & Ors [1999] ScotCS 92 (30 March 1999) URL: http://www.bailii.org/scot/cases/ScotCS/1999/92.html Cite as: [1999] ScotCS 92 |
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0441/6/92
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OPINION OF LORD MARNOCH
in the cause
THOMAS LAMB CROOKS (A.P)
Pursuer;
against
(FIRST) MESSRS LAWFORD KIDD & CO AND OTHERS
Defenders:
________________
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Pursuer: Campbell Q.C., Armstrtong, Robsons
Defenders: Hanretty, Dundas & Wilson, 1st, 2nd and 3rd Defenders,
Ms Shand, Simpson & Marwick W.S., 4th to 18th Defenders
30 March 1999
When this case called in Procedure Roll the action was, of consent, dismissed against the first to third defenders inclusive but insisted in against the fourth to eighteenth defenders inclusive, who are the firm and partners, or former partners, of Messrs Ross Harper & Murphy, Solicitors, Glasgow. Insofar as the action was directed against these defenders it is based, essentially, on alleged professional negligence by failing to move for a discharge of a Proof diet shortly after taking over the conduct of an action at the instance of the present pursuer against one, Kenneth Alan Harper, from whom the present pursuer and another had purchased a basement flat in 1976. The details of that action are, it seems to me, for present purposes neither here nor there, but in broad outline the pursuer sought damages of £100,000 which was said to be the cost of remedial works arising from an outbreak of dry rot in the said basement caused by alleged negligent building works executed by the said Kenneth Alan Harper.
So far as the matter of a discharge of the Proof is concerned the pertinent averments are to be found in Condescendence 5 of the summons in the present action which is, inter alia, in the following terms (under explanation that the reference to a Note of 23 September 1987 is a reference to a Note of that date written by Senior Counsel and that the reference to "the extra judicial offer in settlement hereinbefore referred to" was a reference to an offer by Harper to purchase back the said basement flat for £25,000):
"COND. 5 Between 19th November, 1987 and 8th December, 1987 the Pursuer contacted a number of firms of solicitors inviting them to accept instructions to act on the Pursuer's behalf in the said action and to represent him at the said diet of Proof. In view of the imminent diet of Proof the Pursuer encountered considerable difficulty in obtaining a new solicitor to represent his interests. On 8th December, 1987 he consulted with the fourth defenders at their then offices at 133 Lauriston Place, Edinburgh. He met with a Mrs Cameron then employed by the fourth defenders who assured him that the fourth defenders would be prepared to act on his behalf and represent him at said diet of Proof. She indicated that, given the Sixth Defender's experience, he would be able to prepare the case for the said diet of Proof. In agreeing to act on behalf of the Pursuer, the fourth to seventeenth Defenders and the said Thomas A. Grieve entered into a contract with the Pursuer. It was an implied term of that contract that these defenders and Mr Grieve would exercise the degree of skill, care and expertise to be expected of an ordinarily competent solicitor professing skill in and knowledge of the conduct of civil litigation in Scotland as practised in December 1987 and for so long as they acted for him. Furthermore, and in any event, in agreeing to act on behalf of the Pursuer, these Defenders and Mr Grieve undertook to take reasonable care to exercise the degree of skill, care and expertise to be expected of an ordinarily competent solicitor professing skill in and knowledge of the conduct of civil litigation in Scotland as practised in December 1987 and for so long as they acted for him. In particular the Pursuer was then advised that if he signed a Mandate to transfer his existing legal Aid Certificate to the fourth defenders they would thereafter proceed with the further preparations required for said diet of Proof. The Pursuer advised Mrs Cameron that he had been denied (by the first to third defenders) a consultation with Senior Counsel in order to discuss the advice contained in said Note of 23 September 1987, which contradicted previous advice tendered in said action. He also advised Mrs Cameron that he wished her firm to prepare for the proof. Mrs Cameron did not discuss with the Pursuer the possibility of enrolling a motion seeking to discharge the said diet proof assigned for 5 January 1988 and succeeding days. In the light of said assurance the Pursuer duly signed a Mandate for the transfer of said Certificate. At all material times while the said third (sic.) defenders acted on the Pursuer's behalf in said action the partner of the fourth defenders who was responsible for the conduct of the Pursuer's business was the sixth defender. Despite the assurances aforesaid from said Mrs Cameron the Pursuer became concerned regarding the conduct of said diet of Proof as he heard nothing further from the fourth defenders or the sixth defender. He therefore insisted upon a meeting with said sixth defender which took place on 28th December 1987. At said meeting the sixth defender then stated that although he had received the papers from the previous agents acting on behalf of the Pursuer, the fourth defenders would not be able to deal with the Proof diet because he had no time to give consideration to the papers. The Pursuer who had been led to believe that his interests were being protected by the fourth defenders was then told for the first time that the fourth defenders would not be instructing Counsel to attend at said diet of Proof and would not be instructing any further consultation with Counsel who had acted in the case. The sixth defender did however state that he would contact the Senior Counsel who had issued said Note to obtain his views on whether he would be prepared to accept instructions to conduct said Proof diet. By lette
Condescendence 6 then follows:
"In the foregoing circumstances, the Pursuer, who had been told that he would be unrepresented at the said diet of proof, commencing on 5 January 1988, and who had been left with no reasonable alternative, considered himself obliged to accept the offer then made on behalf of Mr Harper. The Pursuer did accept that offer. The proof did not take place. By accepting said offer in the foregoing circumstances, the Pursuer sustained the loss, injury and damage hereinafter referred to."
Turning now to the averments of fault, these, so far as the fourth to eighteenth named defenders are concerned, appear in Condescendence 8 which, as amended at the Bar, reads as follows:
"COND. 8 Separatim said loss, injury and damage sustained by the Pursuer was caused or materially contributed to by the fault and negligence et separatim breach of contract of the fourth to eighteenth named defenders. It was an implied term of their engagement as the Pursuer's solicitors and in any event it was their duty in representing the Pursuer to exercise the care and skill reasonably to be expected or (sic.) solicitors of ordinary competence exercising reasonable care and skill. They knew or ought to have known that by accepting instructions to act on the Pursuer's behalf, which they did, there was then a reasonably foreseeable risk that if said diet of proof were to proceed at a time when they were unable to ensure that all proper preparations for such diet had been completed, and in particular when they were unable to ensure that counsel for the Pursuer were adequately instructed and had been given adequate time to prepare for said diet of proof (which they had not been able to ensure), when they had not, themselves, had sufficient time to assimilate and appreciate the import of said voluminous papers (which they had not), and when they were not in a position to advise the Pursuer in detail on the terms of the said offer to settle said action (which they were not), then the Pursuer would sustain loss, injury and damage. They knew or ought to have known that once they had agreed to act on his behalf the Pursuer as a lay person in receipt of legal aid was entirely dependent upon them for guidance and advice in relation to the preparations required for the proper conduct of the said diet of Proof. They knew or ought to have known that the proper course to follow, having assumed agency as close to the diet of proof as they did, was to enrol a motion seeking a discharge of the diet of proof fixed for 5 January 1988 on the grounds that there had been a change in agency with effect from about 8 December 1987, that there were difficulties in the transfer of the Legal Aid Certificate granted in favour of the Pursuer, that no witnesses had been cited to give evidence on behalf of the Pursuer at said diet of proof, and that the extensive paperwork generated by the action could not adequately be assimilated in the time remaining before the diet of proof. It was accordingly their duty to enrol such a motion in the circumstances in which they found themselves. In that duty the said Mrs Cameron, for whose actings in the course of her employment with them the fourth Defenders are responsible, and/or the sixth Defender failed. No ordinarily competent solicitor, professing said skill in and knowledge of the conduct of civil litigation would have failed to enrol such a motion for discharge of said diet and accordingly no such solicitor would have acted as said Mrs Cameron and the sixth Defender did if exercising the requisite degree of skill, care and expertise in the whole circumstances. In the event that said Mrs Cameron and/or the sixth defender had enrolled such a motion, it would, in the whole circumstances hereinbefore narrated, and in the event that the fourth defenders were represented to the Court as being unable to conduct and/or instruct counsel to conduct said proof because of lack of time properly to prepare for same, said motion would have been granted by the Court. By their said failures in duty, Mrs Cameron and/or the sixth Defenders, for whose acts and omissions at all material times the fourth to seventeenth Defenders and said Mr Grieve are and were responsible, caused or materially contributed to the Pursuer's said loss."
Lastly, the averments of loss are to be found in Condescendence 9 which was substantially amended in terms of a Minute of Amendment allowed during the Hearing, and which, in its amended form, reads as follows (under explanation that the "Mr Sandison" there referred to was a former partner of Messrs Lawford Kidd & Co, Solicitors, "the firm", who had earlier acted for the pursuer):
"COND. 9 As a result of the fault and negligence et separatim breach of contract of the defenders the Pursuer sustained loss, injury and damage. He was obliged, in the circumstances hereinbefore narrated, to accept an extra judicial settlement in terms of which, in return for a re-conveyance of the flat to Mr Harper or his nominees, he received the sum of £25,000 plus judicial expenses including an award of an additional fee to his solicitors. The full terms of the settlement are set out in a letter of 5 January 1988 from Mr Harper's agents to the fourth Defenders, a copy of which is produced herewith and referred to for its full terms which are held as repeated and incorporated herein. Settlement was proposed by Mr Harper's said solicitors on the basis that in return for the re-conveyance of the flat the Pursuer would receive a sum intended to represent the then value of the flat, valued on the basis that it was free from defects. When said offer was made to the firm, at about the end of August 1987, it was represented to the firm that Mr Harper had had the flat valued at about £25,000. No valuation or survey Report valuing the flat in such a sum was ever exhibited to the firm or the fourth Defenders. They are severally called upon to specify whether they requested sight of any such Report. By letter dated 18 September 1987, Mr Sandison advised the firm of Graham & Sibbald, Chartered Surveyors, of said offer and instructed said firm to value the flat with a view to considering said offer. On the same date, when instructing Mr Haddow to advise on the offer, Mr Sandison indicated that the firm considered that flat to be worth between £30,000 and £40,000. A Report by Messrs Graham & Sibbald, dated 1 October 1987, valued the flat at £35,000, which sum, in terms of their supplementary Report of 19 October 1987, they revised to £36,000. At the time the Pursuer acquired the flat and in late 1987, residential property in Dundee of the same type as the flat was selling for at least 10% in excess of valuation. The Pursuer accordingly believes and avers that the true value of the flat, free from all defects, for the purpose of said proposed settlement was of the order of £40,000. At the time said action was raised, and throughout the dependence thereof, the flat was unsaleable on account of the defects, in respect of which the action was raised and which are set out in Condescendence 11 of said Closed Record. In said Closed Record, the sum sued for was £100,000 based principally on the cost of rectifying said defects, which, so long as the Pursuer was unable to sell the flat, represented the true measure of his loss. In the foregoing circumstances, said offer on behalf of Mr Harper having been made over four months prior to said diet of proof, the Pursuer believes and avers that said offer of £25,000 in return for a reconveyance, would have been substantially increased if the Pursuer had been in a position to proceed to proof on 5 January 1988, or at a later re-assigned diet following discharge of that diet in January 1988. At all material times the pursuer was prepared to proceed to proof in said action in the event that otherwise acceptable terms of settlement were not available. The fourth to eighteenth defenders' failure to obtain the discharge of said proof, in circumstances in which they were not otherwise able to protect the interests of the pursuer, as hereinbefore condescended upon, precluded the possibility of subsequent proper preparation for proof. The pursuer accordingly lost the opportunity of proceeding to proof or of negotiating a more favourable settlement (based upon the true value of the action and said offer of 31 August 1987) from a position where the possibility of proceeding to proof remained open to him. Success in said action would have permitted the pursuer to render said unsaleable flat an asset worth £40,000. In the whole circu
Although the sum of £15,000 is the additional sum which the pursuer would have received if the original action had gone to proof and been wholly successful Mr Campbell explained that it was also the amount by which it was contended the offer in settlement would have been increased had the pursuer been in a position to proceed to proof in the first instance. This was not so surprising as might at first sight appear since the "mechanics" of the offer to settle had in fact reflected - in terms of capital values - outright success on the part of the pursuer.
In light of the pleadings as set out above counsel for the defenders' main attack on relevancy was that the pursuer was not here suing for loss of the only right he had, namely the right to sue for damages, but simply for loss of an alleged right to negotiate a better settlement. That, however, was not a separable right and, even if it was, there was no averment that the settlement actually obtained by the pursuer was an unreasonable one or that recommending acceptance of it was in any way negligent on the part of the defenders. As to that, I agree with counsel that the pursuer had no legal right to negotiate a settlement, as it were, in vacuo. However, whatever may have been the position on the unamended pleadings, I am satisfied that on the pursuer's pleadings as they now stand what is really being said is that the pursuer's case ready to go to proof had a settlement value higher than that which the pursuer was obliged to accept. The fact that the pursuer quantifies his claim by reference to a settlement value, rather than ultimate success in the action, in my view simply reflects the authorities cited in debate which, for the record, were Kitchen v Royal Airforce Association [1958] 1. W.L.R. 563, per the Master of the Rolls at pps.574-575, Yeoman v Ferries 1967 S.C. 255 and Kyle v P & J Stormonth Darling 1993 SC 57. It was, I think, at one stage submitted that the pursuer's pleadings were in any event irrelevant in that there was no averment that any competent or reasonably competent solicitor would have negotiated an improved offer. In my opinion, however, the question of whether an improved offer would have been obtained is a question of causation to be decided after proof and need not, itself, be explored in terms of negligence.
That is enough for disposal of what I understood to be the substantial arguments advanced by Miss Shand but I have to record that, in addition, she advanced, albeit briefly, no less than seven additional submissions anent the relevancy of the pursuer's pleadings. I list these as follows. First, she submitted that there was no averment that counsel could in the circumstances have responsibly moved for a discharge of the Proof in question. As to that, I regard such an averment as quite unnecessary and, indeed, on the pursuer's averments, I should have thought that there was little question but that a discharge could be moved for responsibly. Not only that, but the pursuer offers to prove that such a motion would have been granted. In any event, I cannot see that there was anything to stop the pursuer, himself, moving for a discharge had he been advised that that was a possibility. Secondly, Miss Shand submitted that there were no relevant averments in support of the flat having a value of £40,000 rather than £36,000 and that the figure of £15,000 could not be related to an increased offer. I have already dealt with the second part of that submission and, as to the first, I am satisfied that the pursuer is entitled to proof of his averment that the flat would have sold for somewhat in excess of the sum at which it had been valued in writing. Third, Miss Shand submitted that it was nowhere averred that the pursuer would have proceeded to Proof if he did not obtain an increased offer of settlement. In my opinion, however, that is clearly implicit in the pursuer's averments in Article 9 of Condescendence, as amended. Fourthly, Miss Shand submitted that it was irrelevant for the pursuer to aver the loss of an "opportunity" of proceeding to Proof or of negotiating a more favourable settlement. However, insofar as I understand that submission, the use of the word "opportunity" does not in my view detract from the pursuer's substantial complaint, namely that he was unable to negotiate a settlement based on the true value of his right of action. Fifthly, Miss Shand submitted that, had a discharge been granted, the expenses occasioned by the discharge would have affected the settlement value of the claim. I am not sure, with respect, that I understand that submission but, in any event, I regard the matter as one for Proof. Sixthly, Miss Shand submitted that it had not been averred by the pursuer that, even if a discharge had been granted, he would at any later date have been in a position to proceed to proof. In that connection he had not averred that Legal Aid would have continued to be available to him or that he would, if necessary, himself have continued with the action as a party litigant. As to all that, it respectfully seems to me that there is no reason to assume either that Legal Aid would have been withdrawn or that, if necessary, the pursuer, himself, would not have proceeded with the action; and I accordingly regard averments along the lines desiderated as being wholly unnecessary. Seventhly, Miss Shand submitted that the averments anent solatium were sparse in the extreme. I agree that they are sparse but it is difficult to see how they could usefully be elaborated. In any event, I regard them as sufficient to go to Proof before Answer.
In the overall result I shall repel the fourth plea-in-law for the fourth to eighteenth defenders, which is a plea that the averments of loss in Article 9 of Condescendence should not be remitted to probation, and, as to their first plea-in-law, which is a general plea to the relevancy of the pursuer's averments, I shall allow a Proof before Answer.
