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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Brash & Anor v. Boyce [2004] ScotCS 210 (26 August 2004) URL: http://www.bailii.org/scot/cases/ScotCS/2004/210.html Cite as: [2004] ScotCS 210 |
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OUTER HOUSE, COURT OF SESSION |
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A3370/01
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OPINION OF C. J. MacAULAY, Q.C. (Sitting as a Temporary Judge) in the cause IAN BRASH and MRS SUSAN BRASH Pursuers; against MISS FIONA BOYCE Defender:
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Pursuers: Mundy, Solicitor Advocate; Connell & Connell, W.S.
Defenders: Charteris, Advocate; Balfour & Manson
26 August 2004
Introduction
[1] A horse called Rosco Inchwood Sirocco, otherwise known as "Rosco" is at the centre of this dispute. Rosco was purchased by the pursuers from the defender in October 2000. A proof took place, the principal issue being whether the pursuers were entitled to reduction of the contract of sale entered into with the defender. The essential issue of fact was Rosco's age at the date of the contract. [2] The pursuers gave evidence and also led in evidence Ian Shilliday, a vet. The defender gave evidence and led in evidence her parents, Mr and Mrs Boyce, Michael Casey, and Gavin Lawrie. Mr Lawrie was also a vet.The pleadings
[3] The pursuers conclude for a declarator that "the pretended Contract for sale by the defender to the pursuers of Rosco Inchwood Sirocco on 12 October 2000 was induced by fraud of the defender and null and void and of no force or effect". At the beginning of the proof Mrs Mundy intimated that the allegation of fraud was restricted to the issue of Rosco's age at the date of the sale. Realising after hearing the defender's submissions that the failure to conclude for reduction in this action was a fundamental flaw, Mrs Mundy moved to amend the first conclusion by adding the words "and for reduction of the said Contract". Miss Charteris did not oppose this amendment, and I allowed the Record to be amended by the addition of those words. The action is therefor one seeking the reduction of a contract for the sale of Rosco due to fraudulent misrepresentation on the part of the defender in relation to Rosco's age. The averment made at the end of Article 1 of Condescendence is that the "pursuers would not have purchased Rosco from the defenders had they been aware that he was 15 years of age. The pursuer also seeks damages. [4] Although the action is directed only against Miss Fiona Boyce, the dispute is really between the Brash and Boyce families, the principal players being the Pursuers (the Brashes), the defender and her mother, Mrs Boyce (the Boyces). Mr Boyce, the defender's father, plays a lesser but nevertheless significant role. It was his cavalier attitude when registering Rosco in 1995 that lay at the heart of the problems that developed subsequent to the sale.The Contract
[5] In September 2000 the pursuers' daughter, Vicki, then aged 15, wanted her parents to buy her a horse. She was interested in horses. Her previous horse had been sold. Vicki was a competent rider and competed in local showjumping competitions. Vicki enlisted her mother's help in her search. On or about 27 September 2000 they were attracted to the following advertisement in the magazine, "Supermart":"BAY GELDING, 14.2hh, 10 year old, BSJA winnings, excels showjumping, cross country, 100% box, shoe, clip, catch and traffic, sadly outgrown, £1,600 including tack and rugs. Telephone 01236 825634 Kilsyth."
"NOTE 1 - AGE
Estimates of age based on examination of detention are imprecise and unreliable. In my opinion the approximate age is as stated and/or within the range shown. If the term "aged" is used, this means that in my opinion the animal is over 8 years old."
In his evidence Mr Shilliday explained that horses can be aged by dentition up to the age of about 8. Thereafter, ageing by dentition is much more difficult. Gavin Lawrie, the vet led on behalf of the defender, agreed with Mr Shilliday that age by dentition is reasonably accurate up to the age of 8. He also explained that because ageing by reference to teeth was so inaccurate, a passport system is to be introduced on a compulsory basis with a horse's date of birth being documented.
[9] In the course of his examination of Rosco, Mr Shilliday asked Mrs Boyce about Rosco's age. Mrs Boyce said he was 12. This was the first time Mrs Brash was aware that Rosco was being held out to be 12 rather than 10. [10] At the time of the vetting there was some discussion about Rosco's registration with the British Showjumping Association (the "BSJA"). Mrs Boyce indicated that Rosco's BSJA registration would confirm his age as 12 years old. Registration with the BSJA allows a rider to compete in BSJA affiliated events. When a horse is registered the BSJA provide the owner with a card which, on presentation at BSJA events, allows entry to the event. [11] The information contained in the advertisement in Supermart had been telephoned to that newspaper by the defender's younger sister, Angela. Neither the defender nor Mrs Boyce had seen the advertisement prior to the vetting of 6 October 2000. They were not aware that Rosco had been advertised as aged 10. [12] Mr Shilliday passed Rosco as sound for use in showjumping events. Mrs Brash and Vicki decided to give some thought to whether they should proceed with the purchase of Rosco. In the period following the vetting the Brash family discussed this issue. Mr Brash was against the purchase on the basis that the original plan was to buy a horse in the range of 7-10 years old and not a 12 year old. However, because Rosco had been passed as sound by the vet, and was close enough in age to the desired range, the decision was made to proceed with the purchase. On 12 October 2000 Rosco was collected from the Boyce premises and the price of £1,600 was paid.The Contractual Aftermath
[13] In the days following the conclusion of the contract Rosco became the unwitting cause of a serious deterioration in the relationship between the Brashes and the Boyces. The seed for this deterioration had been sown by the apparent confusion over Rosco's age. On 13 October 2000 Mrs Brash wrote to the defender reporting that "Vicki had ridden (Rosco) and he is behaving beautifully" but also making the following request:"As you will be aware, the advert stated that Rosco was 10 years old, although when the vet asked his age during the vetting your mum advised that his BSJA registration document would confirm he is 12. I had insured him as being 10 years old based on the advert, so I would be grateful if you could forward a copy of his registration document to me to confirm which of these ages is correct" (No. 6/5 of Process). "
The reference to insurance in this letter is somewhat puzzling since the decision to purchase Rosco was made after the age of 12 years old had been put forward as his age at the vetting. Later I shall explore the significance of this letter on a particular disputed issue of fact. At present it is sufficient to say that there was no immediate response to this letter.
[14] Thereafter the Brashes themselves decided to obtain confirmation of the position from the BSJA. On 16 October 2000 Mr Brash telephoned the BSJA and was told that Rosco had been registered in 1995 as aged 10. Simple arithmetic meant, if that information was correct, that Rosco was 15 years old in October 2000. On 17 October 2000 Mr Brash again telephoned the BSJA and arranged for a copy of the registration documentation to be faxed to him. He received a copy of the registration document that same day. That document has been produced (No. 6/8 of Process). It confirms that Rosco was registered in July 1995 as being 10 years old in 1995. [15] Having received this information about Rosco's age when registered, Mr Brash sent a letter dated 17 October 2000 to Mrs Boyce. The more relevant parts are in the following terms:"I have this morning spoken to the British ShowJumping Association and they have faxed us the information they hold relative to Rosco. The BSJA have confirmed that Rosco was registered in 1995 by Mr Boyce as a 10 year old. This ages the horse as a minimum of 15 years ... We have the original advert which proves you advertised Rosco as a 10 year old when obviously you were aware of his true age. Had the correct information been disclosed we would not have spent time, effort and money looking at this horse ... This deliberate deception necessitates that you arrange for the uplifting of the horse from Tower Farm following full repayment of purchase price and expenses in either cash or bankers draft within the next 7 days."
Rosco's Return
[17] The Brashes were not happy with the explanations given to them. On 22 October Mr Brash sent a letter to Mrs Boyce, enclosing a copy of the BSJA registration document. He repeated his request for repayment of the purchase price, and he listed some other costs associated with the purchase. There was no response to that letter. On 30 October 2000 Rosco was taken back to the Boyce premises by Mrs Brash. Whilst Mrs Brash was in transit with Rosco, the defender telephoned Mr Brash and made it clear she did not want Rosco back. Nevertheless he was taken to the field from where he had originally been purchased. Some photographs of Rosco were taken to show that he had been returned to that location on 30 October 2000 (No 6/12 of process). After Rosco had been returned to the field, Mrs Brash met some members of the Boyce family, and, in particular, Mrs Boyce and the defender. This was something of an unpleasant confrontation, at least from the perspective of Mrs Brash. The defender, in particular, seems to have behaved in a less than ladylike fashion. Mrs Boyce told Mrs Brash that the defender had spent the money on a car and the car had "blown up". The upshot was that Rosco was returned to the Boyces but no money was handed over to Mrs Brash. [18] I should observe that one of the documents produced on behalf of the pursuers is a document headed "Rosco - Diary of Events to 24 October 2000" (No. 6/14 of Process). This document was compiled by Mrs Brash once the transaction started to go wrong. The entries begin at 27 September 2000 and continue up to and beyond 16 and 17 October. It follows that the earlier entries were not made contemporaneously, but, as Mrs Brash explained, once it was realised there were problems. Some parts of this document were referred to during Mrs Brash's evidence. It proved to be particularly useful in focusing upon the dates when certain events in this saga occurred. The Boyces themselves had little recollection of dates.Rosco's age in October 2000
[19] Clearly, an important starting point in this dispute is whether an answer can be obtained to the question - how old was Rosco in October 2000? In 1995 at the time when Rosco was registered, contrary to the position now, no original documentation had to be supplied to the BSJA to vouch a horse's age. On the issue of age Mr Casey's evidence was critical. Mr Casey had a knowledge of horses. He sold Rosco to the Boyces in the second half of 1995. When he sold Rosco he said he was asked by Mrs Boyce how old he was and he said he told her he was 7 or 8 years old. He explained that by that description of Rosco's age he meant that Rosco was aged 7 rising to 8 in January. He also explained that when he had purchased Rosco for his daughter Rosco was then 5 or 6 years old, and that was one and a half to two years earlier. Mr Casey came across as a credible and reliable witness. He gave his evidence in a clear and balanced way. He had no axe to grind in the dispute between the Brashes and the Boyces. Although he had sold Rosco to the Boyces, he had no real connection to them. It seems his daughter and the defender came across each other at showjumping competitions, and it was in that way that Rosco caught the defender's attention. It was suggested to him in cross-examination that the horse he sold to the Boyces may not have been Rosco. However, under reference to the photographs taken when Rosco was returned to the Boyces on 30 October 2000, Mr Casey said he was reasonably sure the horse in the photographs was the horse he sold to the Boyces in 1995. On another occasion he said he was 97% certain. I am satisfied that it was Rosco he sold to the Boyces in 1995. The effect of Mr Casey's evidence is that, as a matter of fact, Rosco was about 12 years old when sold to the Brashes in October 2000. As I shall explain later, Mr Casey's evidence as to Rosco's actual age destroys the case made by the pursuers based on fraudulent misrepresentation.The Boyce family's knowledge
[20] I am satisfied that the defender and Mrs Boyce believed Rosco to be 12 years old at the date of the sale. The defender said that she had been told by Mr Casey at the time of the sale in 1995 that Rosco was 7. That formed the basis for her assertion that Rosco was 12 in October 2000. Notwithstanding the advertisement it was made clear to Mrs Brash by Mrs Boyce at the vetting on 6 October that in fact Rosco was 12 and not 10 years old. The defender and Mrs Boyce did not know prior to 6 October 2000 that the advertisement suggested Rosco was 10 years old. I am also satisfied that Mrs Boyce believed that the BSJA registration documentation would confirm her belief as to Rosco's age. It would have been odd for her to have directed Mrs Brash to the BSJA if she did not believe that her assertion that Rosco was 12 years old would be confirmed. [21] In his evidence, Mr Boyce made it clear that he had little to do with any horses his family might be involved with. His daughter had asked him to register Rosco because she wanted to enter certain showjumping events. He had telephoned the BSJA to do that, and when asked about Rosco's age, he had said he did not really know but that he had responded by saying "roughly about 10". He said in cross-examination he had no real idea of Rosco's age at the time of registration. He gave his evidence in a perfectly straightforward way and he came across as a credible and reliable witness. [22] It transpired from Mr Lawrie's evidence that so far as value is concerned, there would be no significant difference in value between a horse aged 12 and one aged 15. Accordingly, at least from that standpoint, there would be no incentive for the defender or Mrs Boyce to mislead the pursuers about Rosco's age.Some areas of dispute
[23] During the proof a number of issues arose where there was some disagreement between the Brashes and the Boyces as to what might have been said at certain times in their dealings with one another. Perhaps not surprisingly, in a case of this kind where feelings are running high, both sides sought to present their own side of the story in the best possible light. Standing my finding in fact that Rosco was about 12 years old in October, and the consequences of that finding on the pursuers' case, I think that these areas of dispute are no longer of any real significance. Nevertheless, I propose to make some observations on the main issues in dispute. [24] The defender said in evidence that in the initial phone call on 29 September from Mrs Brash in response to the advertisement, she had told Mrs Brash that Rosco was 12 and not 10 as suggested in the advertisement. Mrs Brash does not accept that the defender had done so. I am satisfied that the defender did not mention Rosco's age as 12 during that particular telephone call. In her letter of 13 October 2000 (para. [13]) Mrs Brash implies that it was only when Rosco was being examined by the vet that the suggestion that Rosco was 12 was made. I am inclined to attach greater weight to that kind of contemporaneous material than to the defender's recollection. In relation to that issue I am of the view that the defender is mistaken. The defender was not present at the vetting but I think it is likely during one of the subsequent telephone conversations she had with the Brashes that she asserted that Rosco was 12 years old at the time of the sale. [25] There was some dispute as to what exactly was said by Mrs Boyce when reference was first made to BSJA registration. Mrs Brash suggested that Mrs Boyce undertook to produce the BSJA registration. Mrs Boyce had no real recollection of the discussion about the BSJA registration but I am satisfied that there was some discussion about it. However, I am also of the view that Mrs Brash probably read too much into what Mrs Boyce may have been saying about the BSJA registration. The Boyces did not have any documentation to produce, and I believe it more likely, against the background of confusion that had been caused in connection with Rosco's age, that the BSJA was mentioned as a source from which confirmation regarding Rosco's age could be obtained. [26] There was some dispute as to what may have been said about other prospective purchasers after the Brashes had obtained the registration information from the BSJA. Mr Brash suggested that during the telephone call on 16 October 2000, after Mr Brash had received the details of Rosco's registration verbally from the BSJA, Mrs Boyce had said that some previous prospective purchasers had been interested in Rosco but having checked with the BSJA had lost interest when they discovered he was 15. Mrs Brash supported this account. She said she had listened in on the call. Mrs Boyce said that she did not know until the BSJA was contacted by the Brashes that Rosco had been registered as aged 10 in 1995. I am satisfied that neither the defender nor Mrs Boyce realised before being told by Mr Brash that Rosco had been registered as 10 in 1995. The explanation that Mr Boyce had registered Rosco without giving real thought to his actual age was not offered by the defender until the telephone call of 20 October 2000. Had previous prospective purchasers withdrawn because of what was discovered about Rosco's registered age, then I would have expected the registration position to have been clarified with the Brashes at least during the telephone conversations of 16 and 17 October 2000 rather than on 20 October. Also, had prospective purchasers withdrawn for such a reason prior to the day of the vetting, then again it would be odd for Mrs Boyce at that time to place any reliance on the BSJA registration in relation to age. Furthermore, for Mrs Boyce to make such an observation would only serve to fuel the flames of distrust that were already burning in the Brash household. It would have been a strange remark to make in the circumstances. I believe that Mr and Mrs Brash are mistaken on this matter. [27] Mrs Brash also suggested that at the date of the initial inspection of Rosco, the defender and Mrs Boyce had said to her that Rosco had been four years old when purchased originally, and that had been some five years previously. Mrs Brash suggested that Mr Boyce was within earshot at this time. Both the defender and Mrs Boyce denied that any such remark could have been made. The defender said that she would not have purchased a 4 year old horse because it would lack the maturity necessary for the events in which she competed. Mr Boyce denied that he had overheard any such conversation. My strong impression from Mr Boyce's evidence was that he was paying little attention to what was going on at the time of the initial viewing. I believe Mrs Brash to be mistaken on this whole matter. The Brashes make no mention of this in any of the letters they sent after the sale. I am satisfied that Rosco's age was really only discussed at the vetting at which time the Mrs Boyce sought to clarify the mistake made in the advertisement. Mrs Brash did not dispute that at the day of the vetting Rosco was being held out as 12 years old. [28] Although the Brashes and the Boyces were mistaken on certain aspects of their evidence, generally I was satisfied that both families sought to tell the truth in their evidence.Submissions for the pursuers
[29] Mrs Mundy submitted that it was clear from the evidence that Rosco's age was an important matter for the pursuers when the contract was entered into for his purchase. She submitted that the pursuers would not have purchased Rosco if he was indeed 15 years old. Mrs Mundy argued that the pursuers had been misled by the defender and Mrs Boyce in relation to Rosco's age. In the circumstances the pursuers had been referred to the BSJA for proof of age and that reference contradicted the defenders contention that Rosco was 12 years old in October 2000. She submitted there was no evidence that Rosco was indeed 12 years old in October 2000. Her position was that the pursuers were entitled to rely on the registration document and that showed Rosco to be 15 years old in October 2000. However, she also argued that Rosco could have been "12 or 13" in October 2000 and that the defender and Mrs Boyce had not mentioned that fact prior to the conclusion of the contract. Mrs Mundy submitted that such an omission meant that the representation made to the effect that Rosco was 12 years old was made recklessly. She argued that the information that Rosco was 12 or 13 years old had been concealed and the representation that Rosco was 12 years old constituted a material untruth. Mrs Mundy also made submissions on the credibility and reliability of certain witnesses and in particular on the disputed issues I have dealt with in paragraphs [23]-[27]. [30] On the law Mrs Mundy made reference to Derry v Peek (1889) 14 App Cas 337 and Barnes v Cadogan Developments Ltd 1930 1 Ch. 479 in support of the proposition that a contract induced by a misrepresentation can be reduced not only if the misrepresentation is fraudulent but also if recklessly made. She also referred to John Stewart Hamilton and Stebbings Inc. v Allied Domecq plc (unreported) Ct. of Sess. 30 March 2001 in relation to the questions of damages.Submissions for the defender
[31] Miss Charteris invited me to sustain the defender's first, second and third pleas-in-law, and repel the pursuers' pleas and grant decree of absolvitor. She submitted it was for the pursuers to prove a false representation had been made and to prove that the defender knew, or ought to have known the representation was false. She argued the pursuers had failed in that proof. She placed particular reliance on the evidence of Mr Casey. In particular she relied on his evidence that in 1995 Rosco was 7 rising to 8 in January, and she submitted that that evidence went to prove that Rosco was indeed 12 in October 2000. She submitted that on the evidence Mrs Brash knew that Mrs Boyce was holding out that Rosco was 12 at the time of the conclusion of the contract of sale. She submitted that the defender and Mrs Boyce did not know that the BSJA registration documentation would suggest Rosco was 15 in October 2000. Miss Charteris also made certain submissions on the credibility and reliability of witnesses and in particular on the issues dealt with at paragraphs [23]-[27]. [32] In dealing with the law Miss Charteris referred to Erskine, Inst. III, I, 16, McBryde, Contract, para. 14.13, Western Bank of Scotland v Adie (1867) 5M (HL) 80, Derry v Peek (supra.), Geddes v Pennington (1817) 5 Dow. 159, McLellan v Gibson (1843) 5D 1032, Nisbet v Kinnaird (1898) Mor. 4872. Under particular reference to McBryde, Contract, para. 14.13 and Western Bank of Scotland v Adie, she submitted that an honest belief in the truth of statement made prevents fraud. Miss Charteris argued that the pursuers had failed to prove that the defender or Mrs Boyce did not honestly believe the statements made about Rosco's age were true. Accordingly, even if as a matter of fact what was said about Rosco's age was untrue, the statements made were made honestly and on reasonable grounds. Miss Charteris also argued that the misrepresentation must be proved to have induced the contract and she questioned whether that had been established in this case. Under reference to Geddes v Pennington she argued that not all false statements will invalidate a contract. The pursuers must he shown to have relied upon the fraudulent misrepresentation in entering the contract. She submitted that what lay behind the pursuers' decision to purchase Rosco was the outcome of the vetting rather than Rosco's age. Under reference to Nisbet v Kinnaird she argued that the pursuers ought to have informed themselves about age if it was such a material issue for them.Discussion
[33] In this action the pursuers are seeking reduction of a contract of sale on the basis that it was induced by a fraudulent misrepresentation. The pursuers need to prove that firstly, there was a false representation, secondly, there was the necessary mens rea, and thirdly, the fraudulent misrepresentation induced the contract.False Representation
[34] It follows from the findings in fact that I have made that the pursuers have failed to prove there was a false representation. I am satisfied, under particular reference to the evidence of Mr Casey, that it has been proved Rosco was aged about 12 in October 2000. On that basis alone, the pursuers fail in this action.Fraud
[35] What is required to prove fraud in this type of case is clearly set out by Lord Herschell in Derry v Peek:"First, in order to sustain an action of deceit, there must be proof of fraud, and nothing short of that will suffice. Secondly, fraud is proved when it is shown that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false. Although I have treated the second and third as distinct cases, I think the third is but an instance of the second, for one who makes a statement under such circumstances can have no real belief in the truth of what he states. To prevent a false statement being fraudulent, there must, I think, always be an honest belief in its truth. And this probably covers the whole ground, for one who knowingly alleges that which is false, has obviously no such honest belief. Thirdly, if fraud be proved, the motive of the person guilty of it is immaterial. It matters not that there was no intention to cheat or injure the person to whom the statement was made" (p. 374).
"If persons in the situation of directors of a bank make statements as to the condition of its affairs which they bona fide believe to be true, I cannot think they can be represented as guilty of fraud because other persons think, or the Court thinks, or your Lordship thinks, that there was no sufficient ground to warrant the opinion which they had formed".
It is therefore clear than an honestly held belief in the truth of what is said negatives fraud - even if, objectively, there is insufficient ground for the existence of such a belief. I am satisfied on the evidence in this case that the defender and Mrs Boyce both believed at the relevant time that Rosco was about 12 years old. The defender and Mrs Boyce had been told when Rosco was purchased from Mr Casey that he was then 7, and that meant that in October 2000 he would be 12. At the vetting on 6 October 2000 Mrs Boyce was unaware of the registration details and had no cause to believe that Rosco was other than 12 years old. Therefore, even if the pursuers had proved that Rosco was 15 and not 12 at the date of contract, having periled their case on proof of fraud, they would nevertheless fail in this action.
Reliance
[37] Had the pursuers proved the fraudulent misrepresentation they set out to prove, I would have found that they were induced to enter the contract on the basis of that alleged fraudulent misrepresentation. It was clear from the evidence that it was after some deliberation that the Brashes decided to purchase Rosco once they had been told he was 12 and not 10 years old. Rosco's age was important to them. They would not have purchased a 15 year old horse. Miss Charteris sought to persuade me that it was the favourable vetting that clinched the deal. I do not doubt that if the vetting had not been favourable the Brashes would not have proceeded with the purchase. It is highly unlikely that any prospective purchaser would want to buy an unsound horse. However, in my opinion, the vetting, although material, was not the dominant factor.The pursuers' "12 and 13" argument
[38] Mrs Mundy, as I have already mentioned, argued that Rosco could have been 12 or 13 in October 2000. I think she resorted to this line of argument because of the devastating effect of Mr Casey's evidence on her primary case. Be that as it may, I consider this argument to be misconceived. Although in his evidence Mr Casey did refer to Rosco as being 7 or 8 years old in 1995, he did so in the context of Rosco being 7 and rising to 8 in January. The effect of that evidence is that Rosco was 12 years old in October 2000. In any event, this separate line was not investigated with the pursuers, the focus of their evidence being that a horse aged 15 instead of a horse aged 12 had been purchased.Quantum
[39] If the pursuers had been successful in this action then they would be entitled to damages in an amount that would place them in the position which they would have been in had the misrepresentation not been made. In Conclusion 2 the pursuers sue for the sum of £2,385.85 but in her submissions Mrs Mundy restricted the sum to £2,328.10. That sum is made up of the original purchase price of £1,600 and some other costs incurred in connection with the sale. One of those costs was the cost of the examination carried out by Mr Shilliday (£111). That cost would have been incurred in any event and I am of the view it should not be included. I consider that the other extra costs were properly incurred. Had I been in favour of the pursuers I would therefore have granted decree in the sum of £2,217.10 (£2,328.10 less £111).Conclusion
[40] I have a certain degree of sympathy for the Brashes and the predicament in which they found themselves in October 2000. They had been induced to make an enquiry about Rosco by an advertisement that incorrectly stated Rosco's age as 10. The BSJA registration convinced them that Rosco was 15 and not 12 in October 2000. The BSJA registration contained an error as to Rosco's age due to the off-hand approach to age taken by Mr Boyce at the time of registration. It is hardly surprising that these factors conspired to create, in the minds of the Brashes, some distrust of the Boyces. Nevertheless, the only legal case made by the pursuers in this action is founded in fraudulent misrepresentation and for the reasons I have given, I have found they have failed in the proof of critical elements of their chosen remedy. Accordingly, I shall sustain the defender's second and third pleas-in-law, repel the pursuers pleas-in-law and grant decree of absolvitor.
