Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 169
A594/09	OPINION OF LORD STEWART in the cause HAMISH McLEOD PRENTICE Pursuer; against RICHARD ALLAN SANDEMAN Defender: NUMBER 2 ­­­­­­­­­­­­­­­­­________________

Pursuer: Party

Defender: Haldane, Q.C.; Dundas & Wilson

14 October 2011

[1] This is, or is primarily, an action of reparation for professional negligence arising out of the alleged mishandling by a solicitor of an employment case, namely an application for constructive unfair dismissal. The Defender is the solicitor in question and the application was made by the Pursuer. The application failed in the Employment Tribunal at the first instance. A subsequent appeal to the Employment Appeal Tribunal was rejected as being out of time.

[2] A first debate on the Procedure Roll took place in January 2011. In my Opinion of 28 January 2011 I expressed the view that the action was incompetent, because the pleadings were not in proper form, and that the Pursuer's averments were largely irrelevant [McLeod Prentice v Sandeman [2011] CSOH 18 (28 January 2011)].

[3] On that occasion I identified two negligence claims which looked as if they might be capable of having substance, namely (1) a claim in respect of the Defender's failure to incorporate points in the first instance final submission and (2) a claim in respect of the Defender's failure to lodge the Pursuer's appeal on time. There is also (3) a claim for payment of an unpaid Law Society of Scotland award in respect of the Defender's inadequate professional services.

[4] As best as I could make out, putting together the Pursuer's six different pleading documents, the sums claimed by the Pursuer were: (1) £75,180 in damages made up of (a) £60,000 for loss of the unfair dismissal award against his former employers, (b) £12,000 for loss of employment prospects because of damage to professional reputation and (c) £3,180 in respect of loss of bonus entitlement in his former employment for the year 2003; (2) £80,340 in damages made up of (a) £60,000, for inconvenience and discomfort resulting from the repossession of the pursuer's flat by the mortgage lenders and a six-month period of homelessness, (b) £15,000 for loss of equity in his flat which was repossessed by the lenders and (c) £5,340 being a proportion of his debts which ceased to be covered by payment protection policies; and (3) payment of £1,500, being the unpaid Law Society of Scotland award against the Defender in respect of the Pursuer's complaint of inadequate professional services.

[5] The Pursuer appeared on the former occasion as a party litigant. I allowed the Pursuer another opportunity to put his case in order. The case called on the Procedure Roll for a second debate on Monday 13 June 2011. The Pursuer again represented himself. He narrated the unsuccessful steps he had taken to obtain representation. The Pursuer tendered a new Amended Closed Record, in approximately proper form, marked up to show amendments that he then moved to be allowed at the bar. The document had been intimated to the Defender's agents on Thursday of the week before. Ms Haldane QC for the Defender did not oppose the motion to amend and did not oppose receipt of the new Record. I allowed the amendment and brief Answers for the Defender, dispensed with re-printing and found the Pursuer liable to the Defender in the expenses of the amendment.

[6] There were amendments to the Conclusion for expenses and to articles 10, 12, 13, 14, 17, 23, 25 and 26 of the Summons and to plea-in-law number II. These changes were basically to correct typing errors and to delete a large amount of what the Pursuer called "extraneous" material, about half of his pleadings. The small changes to article 25 and to plea-in-law number II were for the purpose of clarifying the heads of loss by reference to the Schedule.

[7] Ms Haldane QC no longer insists on the Defender's plea to the competency in respect of the form of the Record. The Defender's plea to the relevancy remains live. The Defender's Answers add a new plea of prescription "in respect of acts and omissions prior to 18^th August 2004".

[8] This second debate had been appointed at a By Order hearing on 8 March 2011. On that occasion the Pursuer represented that he wished me to hear the second debate - notwithstanding that I had taken an adverse view of his pleadings the first time round and that, at least on the Defender's submission, nothing had really changed. The Pursuer expressed confidence that his oral argument would persuade me to take a different view at a second debate. When the case called for the second debate on the Procedure Roll I confirmed with the Pursuer that he wished me to adjudicate and that he waived any right he might have to object on the ground that I came to the hearing with preconceptions about his case.

[9] Having heard parties' submissions and made avizandum I have formed the Opinion that the Pursuer's negligence case remains irrelevant; that it would not be in the interests of justice to allow the Pursuer another opportunity to make a relevant case; and that the action quoad the Conclusions for payment in reparation of the sums of £75,180 and £80,340 should be dismissed. The future of the claim for the unpaid Law Society award of £1,500 has to be discussed further.

Submissions for the Defender

[10] Ms Haldane QC presented the new argument on prescription. She stated that it had not been appreciated until the first debate that the Pursuer intended to make a claim for the Defender's failure to present his case properly at the Employment Tribunal in the first instance. Time started to run when there was a concurrence of fault and loss [Dunlop v McGowans 1980 SC (HL) 73]. There was a concurrence on the date when the first instance decision was issued, namely 16 August 2004. The applicable prescription period was five years. The present action had not been raised until 18 August 2009, two days after any claim had prescribed. The burden of proving that a claim remains live lies on the Pursuer [Pelagic Freezing (Scotland) Ltd v Lovie Construction Ltd and Another [2010] CSOH 145 at §§ 92-95].

[11] As regards relevancy, Ms Haldane QC submitted that there had been no substantive change in the Pursuer's case and that I had no option but to dismiss the action since I had already taken the view that the pleadings were irrelevant. On his own narrative the Pursuer had still not obtained a supporting expert report on negligence; and unless his averments satisfied the test for professional negligence as a matter of fact then the case could not pass the test of relevancy.

[12] In relation to the now-perceived claim in respect of the alleged omission at the first instance, Ms Haldane QC referred to articles 10, 11 and 13 of condescendence and to J S Powell and others (eds) Jackson and Powell on Professional Liability, 6^th edn (London, 2010), § 11-182. The averments, Counsel submitted, did not satisfy the requirements as stated in the text book. (As explained in my first Opinion the gravamen of the Pursuer's complaint about the Defender's handling of the case at the first instance is that Defender omitted to incorporate points in the first instance submission - to the effect that there had been an admission in cross-examination of, I think, the employers' senior partner that the Pursuer had been demoted.)

[13] In reply to the Pursuer, Ms Haldane QC further submitted that the Pursuer's complaints about the mishandling of the case at the first instance were not pled as mere background narrative: if the averments did not relevantly support a claim for reparation in their own right they ought to be deleted. If, as the Pursuer now appeared to submit, the appeal would have succeeded notwithstanding the Defender's alleged negligence at the first instance, then there was no relevant causal link between what occurred at the first instance and the losses claimed and, accordingly, the averments about negligence at the first instance ought to be deleted.

[14] As regards the averments of loss, Ms Haldane QC made a number of points in reply. She submitted that the total claimed in respect of "those sums [the Pursuer] would have been due from [the Pursuer's former employers]", namely £75,180, exceeded the statutory maximum for an Employment Tribunal award, which was about £68,000 at the time. The claim for consequential losses should be excluded from probation because of lack of fair notice. Counsel referred particularly to the claim for "lost equity" as a result of the Pursuer's flat being re-possessed. The claim for the unpaid Law Society award of £1,500 was not an "appropriate" head of claim in the present action [articles 20, 21 and 27]. There was no basis in averment for the rate of interest, 10% per annum, claimed on the principal sums.

Submissions for the Pursuer

[15] As to the prescription plea, the Pursuer submitted that the Defender's mishandling of his case was a continuum of negligence that amounted to a "continuing act, neglect or default" in terms of the Prescription and Limitation (Scotland) Act 1973 s 11 (2); and further that the prescriptive period did not start to run until he found out that he had lost his right of appeal - there was no loss as far as he was concerned until that point. Thus, on either view, the prescriptive period did not begin to run until a point in time well short of five years before the action was raised. The Pursuer accepted that, if the failure to present the unfair dismissal claim properly at first instance were viewed as a separate "act, neglect or default" causing loss in its own right, then he had not averred a "relevant date" within the prescriptive quinquennium.

[16] As to relevancy, the Pursuer's submissions sought to address some of the deficiencies identified in my earlier Opinion. I note, though this was not part of the submissions on this occasion, that it is averred at article 13 that "had the [final] submission [at first instance] been properly worded, the Pursuer should probably have won his case". As I said in my previous Opinion this averment does connect the alleged negligence with the losses claimed. It is also averred that "... the failure of the Defender to reiterate [in final submissions at first instance] a crucial fact which he had elicited during cross-examination is Professional Negligence" [article 14]. I now think that on a charitable view it might be possible to see this averment as satisfying in a short-hand way the requirement of relevancy as regards breach of duty of care: but for the reasons given below I am not prepared to take a charitable view.

[17] The Pursuer accepted in oral submissions, under reference to articles 15, 17, 18, 19 and 20 of Condescendence that there were no express averments of professional negligence in relation to failing to the lodge the appeal to the Employment Appeal Tribunal on time. This, he said, was not a pleading error. The negligence was self-evident. The Law Society of Scotland [on a complaint by the Pursuer] had, without stating that there was professional negligence as such, "found the Defender guilty" of losing the Pursuer his right of appeal.

[18] As the Pursuer's Note of Argument puts it [page 6]:

"The Law Society of Scotland, the self-regulatory body for Solicitors, ruled that [the Defender] was at fault. Whilst there is case law for the basis of a failure in Duty of Care (Hunter v Hanley), the Pursuer would argue that a "jury of his peers", especially one where the sole criterion for guilt is "determined on evidence beyond reasonable doubt" has decided the matter sufficiently for the Court to accept their decision."

At article 24 of Condescendence - this was not mentioned in oral submissions - it is averred that the lost chance "was due to the Defender's professional negligence". Neither was it mentioned that in article 26 the Pursuer avers: "The Defender sought to cover up his Professional Negligence by lying to the Pursuer."

[19] At article 14 of Condescendence the Pursuer avers that there were two bases of appeal, namely (1) that there had been sufficient evidence elicited in cross-examination for the first instance tribunal to rule in his favour on the question of demotion (amounting to constructive unfair dismissal); and (2) that the actions of the employers could be taken to have destroyed the necessary element of trust and confidence in the employment relationship (amounting to constructive unfair dismissal).

[20] The Pursuer's Note of Arguments states that "the Defender lost the Tribunal case because of the failure to reiterate that the Pursuer had actually been demoted... rather than his 'perception that he had been demoted'". In oral submissions the Pursuer asserted that it was 99% probable or, on the worst view, i.e. disregarding the evidence that came out in cross-examination about actual demotion, 70% probable that the appeal to the Employment Appeal Tribunal "could have" succeeded.'

[21] At article 24 the Pursuer avers, in effect, that had his claim not been time-barred he could have expected to receive an award of £60,000, being three year's salary, against his former employers. In oral submissions the Pursuer explained, I think, that his employers deliberately deprived him of his £3,180 bonus entitlement for 2003.

[22] In relation to the consequential losses claimed, the Pursuer's Note of Arguments states that the damages claimed are "such that a reasonable man could have foreseen, arising directly out of the negligence to the Defender". The Pursuer's position is that the Defender "agreed to deal with the Pursuer's creditors" [article 22; Note of Arguments, page 3]. No date is given for the agreement. In oral submissions the Pursuer appeared to say that all papers relative to his mortgage and his payment protection policies had been passed to the Defender with the papers about his employment case and that the Defender acted for him in relation to all matters. After he lost his employment case the Pursuer could not meet his mortgage repayments. His flat was repossessed and sold by the lenders. In the process he lost the equity of £15,000 he had in the property.

[23] At article 25 the Pursuer avers that his payment protection policies for the mortgage and other debts "would have paid from the month following the end of employment i.e. from February 2004..." I note that the application to the Employment Tribunal is said to have been made on 12 March 2004. In oral submissions the Pursuer explained that payment under the policies was excluded in the event of voluntary termination of employment. In other words, as I understand it, the policies would have paid if the Pursuer's unfair dismissal claim had succeeded.

[24] The repossession of his flat after the failure of his unfair dismissal claim, in July 2005, meant that the Pursuer was rendered homeless. His pleadings, at article 26, and Note of Arguments, at page 7, cite Bailey v Bullock [1950] 2 All E.R. 1167 as authority for the proposition that there is a relevant claim for the resulting inconvenience and discomfort. (In Bailey £500 was awarded to the plaintiff for the fact that he, his wife and child had to live in cramped conditions with his parents-in-law for about two years because of his solicitor's negligent breach of contract.)

[25] In oral submissions the Pursuer explained that his claim for the unpaid Law Society award of £1,500 had nothing to do with negligence. The averments state that the Law Society award came with a note that the Defender could not charge any fees for the [inadequate] work; that the Defender failed to pay the award and then issued a fee note which showed a balance due of about £3,000 apparently after deduction of a credit for the award [articles 20, 21 and 27; Opinion of 28 January 2011, paragraph 24]. The Pursuer's oral submission continued to the effect that the credit note was a VAT fraud and, if I heard correctly, that the matter in respect of which the fee note was issued was legally aided anyway [articles 21 and 27].

[26] In the event that Proof were allowed, the Pursuer told me that he did not envisage having any witnesses but he would cross-examine the Defender.

Decision

[27] I have not felt entirely bound to follow my earlier decision: the case is easier to understand now that the pleadings have been recast in the Amended Closed Record; there are new Notes of Argument; and there have been further oral submissions. I have taken all these matters into account in reaching my decision.

[28] I have decided that the Defender's prescription argument fails on the point about the start of the prescriptive period, the date when the obligation to make reparation became enforceable. True, the Employment Tribunal decision is said to bear the issue date 16 August 2004: but the Pursuer avers, or at least averred before he deleted "extraneous" material from article 12, that intimation was sent by the Employment Tribunal to the Defender; and that he, the Pursuer, was not notified by the Defender until he received the Defender's letter dated 31 August 2004. The Prescription and Limitation (Scotland) Act 1973 s 11 (3) provides that an obligation becomes enforceable "on the date when the creditor first became, or could with reasonable diligence have become aware that loss, injury or damage had occurred".

[29] The surviving averment about notification of the decision to the Pursuer is:

"... [the result] was not forwarded to the Pursuer until the Friday before the Monday when the Appeal process had to be started... See Production 10. The Pursuer sent the original of the letter of 31 August to the [Law Society] Reporter, but the Reporter chose to ignore the significance of the date of the letter..."

[30] A possible if not the proper inference is that the Pursuer claims to have received notification by letter from the Defender dated 31 August 2004.

[31] Reading between the lines, a concocted notification copy letter dated 19 August 2004 seems to have been inserted, allegedly, into the Defender's file that was produced to the Law Society of Scotland in connection with the disciplinary hearing resulting from the Pursuer's complaint. As I said in my first Opinion [paragraph 42]:

"There is a dispute as to the date the pursuer learned about the first instance decision from the defender. It seems on the pleadings that it could not have been earlier than 19 August 2004."

That date, 19 August 2004, is just less than five years before the action was raised.

[32] I remind myself that context includes the fact that by interlocutor of the Scottish Solicitors' Discipline Tribunal dated 23 August 2007, the Pursuer's complaint of professional misconduct against the Defender was upheld to the extent of finding inter alia that the Defender had misled the Pursuer as to the fate of the Pursuer's appeal. I am simply not prepared to uphold the plea of prescription against a party litigant in this murky state of affairs. I should have allowed a proof before answer - possibly a preliminary proof before answer - on the prescription issue, if I had not sustained the plea to the relevancy.

[33] The prescription argument is directed against the claim for mishandling the Pursuer's application at the first instance. In my view this aspect of the Pursuer's case fails anyway for irrelevancy. As stated above, the Pursuer avers: "... the failure of the Defender to reiterate [in final submissions at first instance] a crucial fact which he had elicited during cross-examination is Professional Negligence". I am not prepared to treat this averment as satisfying the requirement of relevancy in relation to breach of the duty to exercise professional skill and care: the Pursuer does not have an expert opinion to support this averment and he confirmed at debate that he did not envisage leading any evidence. If that is all the Pursuer can say about it, the case is bound to fail.

[34] In contrast, in relation to the aspect of the case that alleges failure to lodge the appeal on time, I am prepared to treat the bald averment of professional negligence as satisfying the requirement of relevancy. As previously explained, this is different from the Hunter v Hanley situation [1955 SC 200]: no element of professional judgement is involved; and there is no need for the Pursuer to aver and prove as a matter of fact culpable departure from the standard of ordinary professional skill and care. A lawyer who professes competence to act in unfair dismissal proceedings should be capable of meeting procedural deadlines. (I must make it clear that I am not prepared to accept the Pursuer's assertion that the professional disciplinary and regulatory findings against the Defender are necessarily determinative of the issue in this case - as I understand it, the misconduct finding was about misleading the Pursuer after the event [article 16]; and the professional services finding would presumably have applied the statutory test of "inadequacy" which may or may not be the same as common law professional negligence.)

[35] However, the claim for the botched appeal does not, in my view, pass the relevancy test as regards causation of loss. I cannot identify any averment that could be taken to mean that an application to the Employment Appeal Tribunal on both or either of the "two bases for Appeal" cited would have succeeded. In connection with the first "basis for Appeal", the Pursuer avers at article 14 that "but for the failure of the submission by the Defender, the Tribunal should have ruled in [the Pursuer's] favour". This begs the question [see also article 13, first sentence].

In his Note of Arguments the Pursuer states: "Case Law quoted in the Pleadings [Hilton International Hotels (UK) Ltd v Protopapa] shows that that point alone should have won the case." I think that what the Pursuer is driving at is that one act of the employer, if serious enough, can amount to repudiatory breach [Hilton International Hotels (UK) Ltd v Protopapa [1990] IRLR 316 at § 9].

[36] As regards the second "basis for Appeal" the Pursuer avers at article 14:

"This constituted sufficient "significant other causes" for the Tribunal to rule in [the Pursuer's] favour. See Production 6. The basic argument is that the Chairman erred in law by not changing the grounds of complaint and telling the parties to return, having prepared proper grounds of complaint... Production 14 should have been sufficient for a professional such as the Tribunal Chairman (who was after all a WS) to realise that the wrong grounds had been chosen by the Pursuer when preparing his case."

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This looks like a contention to the effect that the application should have been remitted for a re-hearing. Whatever it signifies, it is not a categorical averment that the appeal and the claim would have succeeded.

[37] I have tried to understand the substance of what the Pursuer is saying. "Significant other causes", in inverted commas, could be a reference back to the phrase "some other substantial reason" used in article 10, where the Pursuer rehearses the argument that there was, when he wrote his letter of resignation, "some other substantial reason" for him to have considered that his contract of employment was, as he puts it, "void", namely "the destruction of the implied term of trust and confidence".

[38] "Some other substantial reason" is a form of words from the Employment Rights Act 1996 s 98 which provides: "It is for the employer to show (a) the reason... for dismissal and (b) ... that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee..." (In the now-deleted "extraneous" material the pursuer argued that if the test for an employer's actions in dismissing an employee for wrong-doing is "reasonable belief", then, "for reasons of equity" the test for an employee's actions in treating the contract as repudiated ought also to be "reasonable belief".)

[39] These averments do not shed light for me on the question whether the appeal would have succeeded. I am not prepared to accept the Pursuer's assertion in oral submissions about the percentage chances of success as satisfying the test of relevancy. The claim for the failed appeal as presented is, as I say, irrelevant for the reason that the pleadings do not disclose a connection between the alleged negligence and the losses claimed.

[40] I remain of the view that the Pursuer might well have had a good claim on the ratio of Kyle v P & J Stormonth Darling WS 1993 SC 57. Kyle is authority for the proposition that when a solicitor negligently fails to prosecute a claim, with the result that the claim fails, the loss of the opportunity to advance the claim is in and of itself a compensable loss: there is no need to prove that the claim would have been successful. This is not the kind of case that the Pursuer advances, even in the alternative.

[41] I understand the Pursuer's position to be that he does not want to be compensated for the loss of opportunity. His Note of Argument states [page 5]:

"[The Pursuer's] Pleadings have therefore included more information than absolutely necessary... mainly to show that there was a very high probability that he would win the Appeal and should have won the original Tribunal case. Without that high probability, this action might have had to be for the loss of opportunity, rather than for the sums sued for in the Tribunal case."

The Pursuer's claim as presented is contingent on the unfair dismissal application having succeeded at first instance or on appeal. (The point was not discussed whether the right or opportunity lost might be valued by reference to not just the direct consequences but to all the indirect consequences as well.)

[42] As regards the averments of direct loss, I am not in a position (on the submissions made) to say that the losses claimed under the head of "expected award" against the former employers, £75,180 in total, are irrelevant. If successful the Pursuer would have been entitled to a basic award and a compensatory award. In addition my understanding is that he would have been entitled to recover unpaid remuneration including unpaid bonuses as a separate item. The fact that the total amount claimed might exceed the statutory limit for basic and compensatory awards applicable at the time, whatever it was, is not a reason to exclude these matters from probation.

[43] Equally, I cannot say on the submissions made that the consequential losses claimed, total £80,340, are irrelevant on the ground of unforeseeability. Assuming the Defender knew about the overall financial position when he agreed to act for the Pursuer then I am not persuaded that these heads of damage are necessarily irrelevant [article 22]. The pleadings give the Defender adequate notice. I should not have been inclined to exclude any of these matters from probation had the merits been apt for inquiry.

[44] I agree with Counsel for the Defender that the Pursuer's plea-in-law number II - "The Pursuer asks the Court to find the Defender liable to pay interest at the rate of 10% per annum..." - is unsupported by averments relevant to instruct an award of interest at that level. All that the Pursuer says is: "As the Defender has seen fit to charge the Pursuer interest at 10% per annum on his questionable summons for payment of fees, the Pursuer should follow the lead and therefore the amount of interest is [10% per annum]." The averment is irrelevant. The Pursuer's remedy is to challenge the level of interest claimed in the Sheriff Court proceedings for unpaid fees. The plea for the higher rate of interest in this actions falls to be repelled.

[45] I also agree with Counsel for the Defender that the inclusion of the claim for payment of the Law Society of Scotland award along with the claim for reparation for professional negligence is questionable, if for no other reason than that the only plea-in-law for the Pursuer on the merits, plea-in-law number I, is directed exclusively to the issue of negligence:

"The Defender having agreed to act for the Pursuer in his Professional capacity, he had a Duty of Care to the Pursuer. The Pursuer asks the Court to find the Defender to have failed in that Duty of Care and to have aggravated the effects of his failure."

Clearly the "plea" is not apt to support the claim for payment of the award; and if for other reasons that plea falls to be repelled, as I think it does, the conclusion for the sum of £1,500 would be left unsupported by any legal proposition, whether apt or inept, inferring liability to make payment.

[46] The point is not an academic one since it is not necessarily self-evident that a compensation direction made by the Law Society of Scotland against one of its members in terms of the Solicitors (Scotland) Act 1980 as amended s. 42A - which is what I assume the "award" to be - confers a right on the client to insist on payment and to have the award enforced at law.

Disposal

[47] The negligence claims are irrelevant and fall to be dismissed. If the negligence claims are irrelevant, all that is left is the claim for the Law Society award of £1,500. The Defender does not admit that the award was made. The Pursuer does not produce vouching. Again, as in the first debate, there was no discussion as to whether it is competent to combine this claim with the negligence claims in one ordinary action. As a stand-alone claim the sum sued for is below the jurisdictional limit of the Court of Session, though neither party has made submissions as to whether this matters. The legal basis for the claim remains unclear.

[48] There may well be something to be said for remitting the claim for the Law Society award to the Sheriff Court in terms of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 s. 14: apparently the Defender is suing in the Sheriff Court for unpaid fees and has purported to set off the Law Society award against the fees and outlays claimed. On the other hand the seriousness of the allegations made by the Pursuer and the sensitivity of the issue may be a reason for the claim continuing in this Court. It ought to be understood that the claim cannot continue as an ordinary action in the Court of Session unless it is supported by a plea-in-law. I think it would be best to discuss the matter further.

[49] In the result, I shall repel the Defender's first plea-in-law (to the competency of the action) of consent; I shall sustain the Defender's second plea-in-law (to the relevancy) to the extent and with the effect, first, of dismissing the action insofar as seeking payment of the sums of £75,180.00 and £80,340 with interest in terms of the first and second conclusions of the Summons respectively, with the effect, secondly, of deleting the words "at 10 per cent per annum" where they occur in the third conclusion; and with the effect, thirdly, of excluding from probation the following averments, namely in article 13 of Condescendence the sentence "The Pursuer claims that the failure of the Defender to reiterate a crucial fact which he had elicited during cross-examination is Professional Negligence", the whole of articles 22, 23, 24, 25 and 26 of Condescendence; and the words "and therefore the amount of interest is to be calculated as shown in the Schedule attached hereto" where they occur at the end of article 27 of Condescendence; I shall repel the Pursuer's first and second pleas-in-law on the basis that they are now unsupported by sufficient and relevant averments. I take the view that the averments remaining are arguably relevant background to the claim for the Law Society award of £1,500.

[50] I shall appoint the case to call By Order to discuss further procedure in respect of the action insofar as for payment, in terms of the surviving third conclusion, of £1,500 with interest. All questions of expenses are reserved meantime.