SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS
AT BANFF
SC27/05
JUDGEMENT
of
SHERIFF
PRINCIPAL SIR STEPHEN S T YOUNG Bt QC
in the cause
DUNCAN HARRIS
Pursuer and Respondent
against
ROBERT FOUBISTER
Defender and Appellant
|
Act:
Mr Darren Taylor, solicitor, Davies Wood Summers LLP, Aberdeen
Alt:
Mr Thomas A Mullen, solicitor, Stronachs, Aberdeen
Banff: 14
July 2006
The
sheriff principal, having resumed consideration of the cause, answers the
questions of law in the stated case numbered 1 - 9 inclusive and 12 in the
affirmative, finds it unnecessary to answer the questions of law numbered 10
and 11 and accordingly refuses the appeal and adheres to the decree pronounced
by the sheriff on 28 March 2006; reserves meantime the question of
the expenses of the appeal and appoints parties to be heard thereon in chambers
at Aberdeen Sheriff Court on Thursday 20th July 2006 at 2.15 pm.
Note
[1] Before turning to the details of the
pursuer's claim and the defender's response thereto, I think that it may be
helpful to be reminded of the terms of the relevant provisions of the Summary
Cause Rules 2002.
[2] Rule 4.1(1) provides: "A summary cause
action shall be commenced by summons, which shall be in Form 1". This is printed in Appendix 1 to the rules
and includes a box numbered 7 in which appear at the top the words: "STATE
DETAILS OF CLAIM HERE". In support of
this rule 4.2 provides:
4.2 The pursuer
must insert a statement of his claim in the summons to give the defender fair
notice of the claim; and the statement must include -
(a)
details of the basis of the claim including relevant
dates; and
(b)
if the claim arises from the supply of goods or
services, a description of the goods or services and the date or dates on or
between which they were supplied and, where relevant, ordered.
[3] Rule 4.3(a)(i) provides, in short, that a
copy summons shall be served on the defender in Form 1a where the action is
for, or includes a claim for, payment of money.
This form is also printed in Appendix 1, and incorporates a direction to
the defender that he "must send to the court by the return day a written note
of any proposed defence". Further down
the form there is a box headed "WRITTEN NOTE OF PROPOSED DEFENCE/COUNTERCLAIM". In the box there are then three instructions
to the defender which read respectively: "State which facts in the statement of
claim are admitted", "State briefly any facts regarding the circumstances of
the claim on which you intend to rely", and "State details of counterclaim, if
any". Beneath each of these statements
there is space for the defender to insert his statement.
Form
1a is reinforced by rule 8.1(1) which provides:
(1)
if the defender intends -
(a)
to challenge the jurisdiction of the court or the
competency of the action;
(b)
to defend the action (whether as regards the amount
claimed or otherwise); or
(c)
state a counterclaim,
he must complete and lodge with the sheriff clerk or on
before the return day the form of response contained in the defender's copy
summons including a statement of his response which gives fair notice to the
pursuer.
[4] Rule 8.3 tells the sheriff what he is to do
at the first hearing. It provides, inter alia:
(2)
at the hearing, the sheriff shall -
(a)
ascertain the factual basis of the action and any
defence, and the legal basis on which the action and defence are proceeding;
and
(b)
seek to negotiate and secure settlement of the action
between the parties.
(3)
if the sheriff cannot secure settlement of the action
between the parties, he shall -
(a)
identify and note on the summons the issues of fact and
law which are in dispute;
(b)
note on the summons any facts which are agreed;
(c)
where it appears that the claim as stated or any
defence stated in response to it is not soundly based in law in whole or in
part, hear parties forthwith on that matter and may grant decree in favour of
any party; and
(d)
if satisfied that the claim and any defence have or may
have a sound basis in law and that the dispute between the parties depends upon
resolution of disputed issues of fact, fix a diet of proof or, alternatively,
if satisfied that the claim and any defence have a sound basis in law and that
the facts of the case are sufficiently agreed, hear parties forthwith on the
merits of the action and may grant decree in whole or in part in favour of any party.
[5] Rule 8.15 provides in short that, if in the
course of a proof an objection is made to the admissibility of any evidence,
the sheriff must note the terms of the objection and allow the evidence to be
led reserving the question of its admissibility to be decided by him at the
close of the proof. Rule 8.18 then
directs the sheriff, whether he pronounces his decision at the end of a hearing
or proof or after reserving judgement, to "state briefly the grounds of his
decision, including the reasons for his decision on any question of law or of
admissibility of evidence".
[6] Rule 13.1(1) is perhaps of particular
significance in this case in view of the sheriff's conclusion, as I understand
his stated case, that issues of relevancy and specification must be raised and
disposed of before a summary cause proceeds to proof. This rule provides:
(1)
The sheriff may, on the incidental application of a
party, allow amendment of the summons, form of response, counterclaim or
answers to a counterclaim and adjust the note of disputed issues at any time
before final judgement is pronounced on the merits.
[7] Rule 17.1 deals with the lodging of
productions. Rule 17.1(1) provides that
a party who intends to rely at a proof upon any documents or articles in his possession
must (a) lodge them with the sheriff clerk together with a list detailing the
items no later than fourteen days before the proof, and (b) at the same time
send a copy of the list to the other party.
Rule 17.1(3) provides that a party lodging a document under the rule
must send a copy of it to every other party, unless it is not practicable to do
so. Then Rule 17.1(4) provides in short
that subject to certain qualifications only documents or articles produced in
accordance with these rules may be used or put in evidence.
[8] I turn now to the details of the pursuer's
claim and the defender's response thereto.
In the first paragraph in his statement of claim (in Box 7 of Form 1)
the pursuer averred that in the present action he sought payment of sums due to
him under and in terms of the contract "hereinafter referred to". He then set out the detailed terms of his
claim in the third paragraph which reads as follows:
The Pursuer is a building contractor. The Defender is a building contractor. In October 2004 the Defender asked the
Pursuer to price for work at Sod Inn, Kinninmonth, Mintlaw. In October 2004 the Pursuer issued an
estimate to the Defender for that work.
The Defender verbally accepted that estimate. That estimate is based on drawings which were
provided by the Defender to the Pursuer.
That estimate will be lodged in process.
The estimate is referred to for its terms which are incorporated herein
and repeated brevitatits causa. The Pursuer was employed by the Defender as a
sub-contractor. After the Pursuer had
began work, the Defender provided the Pursuer with amended drawings. In 2004
and 2005 the Pursuer carried out work.
In April 2005 the Pursuer issued an invoice to the Defender for work
carried out as per the amended drawings.
The work is detailed in the invoice.
That invoice was in the sum of £6,657.47. In May 2005 the Defender made a payment in
the sum of £5,207.47. The sum of £1,450
remains outstanding. That is the sum
sued for. The work undertaken by the
Pursuer is detailed on the Pursuer's invoice.
That invoice will be lodged in process.
The invoice is referred to for its terms which are incorporated herein
and repeated brevitatis causa.
[9] The defender's response to the summons
incorporated a written note of his proposed defence in the following terms (no
details of any counterclaim were stated):
State which facts in the statement of fact are
admitted:-
The parties are as designed in the instance. The Pursuer is a Building Contractor. Defender is a Building Contractor. The Pursuer issued an estimate to the
Defender for work done. The Defender
verbally accepted this estimate. The
estimate was based on drawings which were provided by the Defender to the
Pursuer. The Pursuer was employed by the
Defender as a sub-contractor. In 2004
and 2005 the Pursuer carried out work.
In April 2005 the Pursuer issued an invoice to the Defender for work
carried out. This invoice was in the sum
of £6,657.47. In May 2005 the Defender
made payment to the Pursuer's account of £5,207.47.
State briefly any facts regarding the
circumstances of the claim which you intend to rely:-
In or around April 2005 the Pursuer walked away
from the job that he was carrying out for the Defender. In doing so he breached the contract between
himself and the Defender. The Defender
left behind remedial and snagging work.
The Defender withheld the sum of £1,450 from the invoice received from
the Pursuer, to take account of the fact that he was required to pay a
replacement builder to finish off the work which was not completed by the
Pursuer.
[10] At this point, and bearing in mind the
requirement of fair notice in terms of rule 8.1(1), I think that it should be
emphasised that there was here no suggestion by the defender that the works
detailed in the invoice had not been carried out by the pursuer as instructed
by the defender or that any or all of them had been in any way defective. Nor was it suggested that the sum of
£6,657.47 had been calculated in whole or in part on a wrong basis or was
excessive, or that the pursuer was otherwise not entitled in principle to
payment of this sum. Indeed the defender accepted that he had made a payment to
the pursuer's account in the sum of £5,207.47. But he did not suggest, for
example, that he had paid this sum in error or for some reason other than that
the sum of £6,657.47 was in principle due and payable to the pursuer. He then went on to explain why he had
withheld the difference between these two sums, namely £1,450. As noted, his position was that the pursuer
had breached the contract leaving behind remedial and snagging work and he (the
defender) had withheld this sum to take account of the fact that he had been
required to pay a replacement builder to finish off the work which was not
completed by the pursuer. In other words he was in my opinion to all intents
and purposes admitting that, if he did not succeed in establishing this
particular line of defence, he would be bound to pay the balance of £1,450 to
the pursuer.
[11] The first hearing was assigned to take place
on 9 August 2005. On 3
August 2005 the pursuer lodged his first inventory of
productions. No. 5/1/1 is a copy of the estimate to which he had referred in
his statement of claim. It details
various items of work which were to be carried out at the site in
question. These individual items are not
separately priced, but an overall price of £23,961 is stated for the work as a
whole. No. 5/1/3 is the copy of the
invoice in the sum of £6,657.47 referred to by the pursuer. Attached to it was a document (of which no. 5/1/4 is a copy) which gave a detailed
breakdown of the pursuer's charges for labour and materials on eighteen
specified dates between 12 February and 19
April 2005 inclusive. These
charges total £6,657.47. The invoice
itself specifies a variety of items of work which had been carried out
including three which are designated as extras.
No separate sum is indicated on the invoice itself against any of these
individual items of work.
[12] At the first hearing both parties were
represented by local solicitors rather than by their principal agents. Understandably in light of the defender's
written note of proposed defence the sheriff concluded that the principal issue
in the case was whether or not the pursuer had breached his contract with the
defender and, if so, whether he was entitled to set off the sum of £1,450 by
way of resulting damages. As the sheriff
puts it in his stated case: "I took it to be the defender's position that the
work in respect of which he was being sued had been done but that the work had
required to be "snagged" or "remedied" and that costs had been incurred in that
regard". In light of this the sheriff noted the disputed issues as follows:
1.
Did the pursuer breach his contract with the defender?
2.
If not, is the pursuer now entitled to payment of the
sum sued for?
3.
If so, was the defender entitled to treat the contract
as rescinded and to employ other contractors to complete the contract works?
4.
If so entitled, is the pursuer now barred from seeking
payment of any further sum?
[13] The upshot of the first hearing was that the
sheriff assigned a proof to take place on 17 October 2005. In anticipation of this the pursuer lodged
his second inventory of productions on 30
August 2005. This contained
two documents, but nothing turns on these for present purposes. Then on 28 September 2005 the pursuer lodged his
third inventory of productions which incorporates six drawings said to have
been provided by the defender to the pursuer.
It will be recalled that in his statement of claim the pursuer had
averred that, after he had begun work, the defender had provided him with
amended drawings, and nos. 5/3/4 and 5/3/5 are said to be copies of amended
drawings while no. 5/3/6 is said to be a copy of a handwritten drawing showing
an amended site layout. It does not
appear from his stated case that it was ever suggested to the sheriff, nor was
it suggested in the course of the appeal, that the pursuer had failed to comply
with the terms of rule 17.1, and in particular rule 17.1(3). It may be assumed therefore that before the
proof the defender was familiar not only with the pursuer's statement of claim
but also with the documents referred to in his three inventories of productions.
[14] In the event the proof had to be discharged
and a new diet of proof was assigned for 12 December 2005.
On that date the sheriff heard evidence from the pursuer and his
wife. No evidence was led for the
defender. The matter was then continued
until 13 February 2006 when
the sheriff heard parties' submissions and gave his judgement from the
bench. He found the pursuer entitled to
the sum sued for and the defender liable to him in the expenses of the cause as
assessed by the sheriff clerk. After
this assessment had been carried out, on 28 March 2006 the sheriff granted
final decree against the defender for payment to the pursuer of the sum of
£1,450 together with expenses of £2,654 and interest thereon as craved in the
summons.
[15] In the course of the evidence of the pursuer
the defender's solicitor made three objections to the admissibility of his
evidence. He made a fourth objection in
the course of the evidence of the pursuer's wife. In the case of each objection the sheriff,
quite properly in view of the terms of rule 8.15, noted the terms of the
objection and allowed the evidence to be led reserving the question of its
admissibility to be decided by him at the close of the proof. In the event he repelled all four objections
and, in a nutshell, the principal issue in this appeal appears to me to be
whether or not he was right to do so.
[16] In response to the defender's note of appeal
the sheriff prepared a detailed stated case.
He made a total of nineteen findings in fact, three findings in fact and
law and one finding in law. These are
set out on pages 2 - 4 of the stated case and it is unnecessary to repeat them
here. At pages 5 - 8 the sheriff set out
the evidence of the pursuer and his wife and noted the points at which the four
objections had been made on behalf of the defender. He noted the details of these objections at
pages 8 and 9, and again it is unnecessary to set these out in full here. In short, the substance of these objections
was that the pursuer had not given fair notice to the defender of the evidence
which he intended to lead in relation to (a) the extra works done by him over
and above those which had formed part of his original estimate, and (b) the
circumstances in which the pursuer had "walked away from the job" as had been
averred by the defender. It appears from
the stated case that, as the discussion developed before the sheriff, the
question arose whether or not issues of relevancy and specification could only
be raised at the first hearing of a summary cause. It appears too that this came about in light
of a submission by the defender's solicitor at the close of the evidence to the
effect that the pursuer had not stated a relevant claim. Be that as it may, the
issue which the sheriff had to decide in relation to the objections was a perfectly
simple one, namely whether or not there was a sound basis in the pursuer's
statement of claim and the documents lodged by him (some of which had been
expressly incorporated in his statement of claim) for the evidence which he
intended to lead and to which objection had been taken. In other words, had the
pursuer in advance of the proof given the defender fair notice of the facts
that he hoped to prove?
[17] This issue is the subject of the defender's
fourth and fifth grounds of appeal which in short are that the sheriff erred in
law in repelling the defender's objections to the evidence for the pursuer in
relation to the extras and the circumstances in which the contract
terminated. In my opinion the sheriff was
quite right to repel these objections.
[18] On the matter of the extras, it should be
recalled that in his statement of claim the pursuer had specifically averred
that, after he had submitted his original estimate and had begun work, the
defender had provided him with amended drawings and that in April 2005 he (the
pursuer) had issued an invoice to the defender for work carried out as per the
amended drawings. These amended drawings
were lodged in process before the proof - see nos. 5/3/4, 5 and 6. Also lodged in process were the invoice dated
19 April 2005 to which the pursuer had referred in his statement of claim and
his earlier invoice dated 19 January 2005 - see nos. 5/1/2, 3 and 4. On the later invoice the three extra items of
work are specifically identified by the word "extra" beside each of them. In these circumstances it seems to me that
the pursuer was well entitled to lead evidence to the effect that he had
carried out extra works over and above those in the original estimate in
accordance with the amended drawings supplied to him by the defender.
[19] As for the defender's objection to the
pursuer's leading evidence about the circumstances in which he came to leave
the site, in my opinion the short answer to this is that the pursuer was
plainly entitled to lead evidence to rebut what, according to his written note
of proposed defence, the defender had indicated that he intended to establish
in response to the pursuer's claim.
[20] The third ground of appeal is that the
sheriff erred in law in repelling the defender's objection to the pursuer's
evidence as to how the sum sued for was constituted. In my opinion the answer to this ground of
appeal is that no such objection was made on behalf of the defender. On the contrary, the first and second
objections were directed against the evidence of the pursuer about the extra
works while the third and fourth objections plainly had nothing to do with how
the sum sued for was constituted.
[21] In this context, it is I think important to
notice in particular what the sheriff has to say in his stated case about the
making of the first and second objections, the accuracy of which was not challenged in the course of the hearing of
the appeal. He refers to these in the
first place on pages 5 and 6 where he wrote:
With reference to the plans, marked as
productions 5/3/1 and 5/3/2, Mr Harris explained the layout of the site - with
particular reference to the proposed layout of the entrance and access roadway
- and of the house foundations. After
work had begun, he was then presented with further plans.
At this point in the evidence of Mr Harris, the
first objection referred to below, Objection
1, was made. Having heard the
parties on this objection, the evidence proceeded.
Referring to production 5/3/4, Mr Harris then
pointed to certain "extras" that had been instructed. A fire bunker had been added at the position
of a hearth chimney. This had involved
"building a box" up to the floor level.
Certain additional drainage works had been required. Pipes, block work and time had been involved
in giving effect to these further instructions.
Mr Harris then said he had been given a further
plan, production 5/3/5. At this point,
(the defender's solicitor) indicated that he was taking a further objection - Objection 2. The basis for this was the same as for
Objection 1. To avoid a constant repetition of this line of objection, it was agreed
that all the further evidence given by this witness relating to work over and
above that contained in the original estimate would be allowed to proceed under
reservation.
[22] The sheriff refers again to the first and
second objections on page 8 of the stated case where he explained the first
objection as follows:
(The defender's solicitor) suggested that the
pursuer's claim clearly proceeded with reference to a plan and estimate which
had formed the basis of the contract between the parties. Was the pursuer, he asked, now to suggest
that there had been a variation of that contract? If so, he suggested, there was no record for
this and evidence of a variation should not be admitted.
Further
down the same page, referring again to the submissions of the defender's
solicitor in support of the first objection, the sheriff wrote:
In so far as the pursuer had not spelt out the
consequences of the amended plans, no fair notice had been given (as I
understood this submission) of an intention on the part of the pursuer to lead
evidence of a variation of the contract.
Finally
on page 8, referring to the second objection, the sheriff recorded that this
was simply a repetition of the first objection.
[23] The sheriff explains the reasons for his
decision to repel the objections on page 16 of the stated case. He began by saying:
I took the view that the objections were
unfounded. I expressed the view that the
pleadings were apt to allow the evidence led.
The evidence objected to related to two areas of the pursuer's case -
albeit, when delivering my judgement - I proceeded on the misunderstanding that
three different areas had been the subject of objection.
The
sheriff proceeded to discuss these three areas of evidence. Referring to the
evidence about the extras, the sheriff wrote:
Only had he failed to read the statement (of
claim) and supporting documentation, could the defender have been taken by
surprise when the issue of extras emerged in evidence. There was clear notice the amended plans and
extras were likely to be the subject of evidence.
Finally
on page 16, after rightly disposing of the third and fourth objections, the
sheriff wrote:
3.
Detailed evidence as to the value of the labour and
materials in respect of which the pursuer sued. At the point of delivering my judgement, I
had it in mind that (the defender's solicitor's) objections had extended to the
evidence led as to the detailed charges applied by the pursuer when preparing
his invoice. I was, I think, wrong in that - the issue was really raised in his
submissions and not at the point at which he objected to the evidence (the
emphasis is mine). I did, however, when
giving my judgement express the view that by incorporating his detailed
"attached sheet" into his pleadings, the pursuer provided an adequate record
for leading evidence as to the basis of his charges.
[24] The defender's first ground of appeal reads
as follows:
1.
The sheriff erred in law in finding in favour of the
pursuer on a different basis from that relied upon in the pursuer's statement
of claim. The pursuer's claim is ex facie that he is entitled to payment
further to an estimate issued by him and an acceptance by the defender. The pursuer's evidence was that the original
contract entered into was not completed as a result of the defender's breach of
contract and that the pursuer was entitled to payment for the work invoiced by him, though the contract as
originally envisaged was not completed.
[25] In my opinion the answer to this ground of
appeal is that it is not true that the sheriff found in favour of the pursuer
on a different basis from that relied upon in the pursuer's statement of
claim. Nor is it true that the pursuer's
claim was simply that he was entitled to payment further to an estimate issued
by him and an acceptance by the defender.
It is perfectly clear from the statement of claim that the pursuer was
seeking payment for the works executed by him, not merely in pursuance of the
original estimate, but also in pursuance of the amended drawings issued to him
by the defender. In a nutshell, the
substance of the pursuer's claim that he was entitled to be paid for the works
detailed in the invoice dated 19 April 2005, these works having been carried
out by him as instructed by the defender in accordance with the original
estimate and the subsequent amended drawings, and this is exactly what the
sheriff has found. (In passing, I observe that I was not asked to delete or
amend any of the sheriff's findings in fact or in law). I can understand that, in other
circumstances, there might have been a question about the precise legal basis
upon which the value of the extra works carried out by the pursuer should have been
quantified. But, having regard to the
terms of the defender's written note of defence, I do not consider that this
was an issue which the defender was entitled to pursue in this particular case.
[26] The second ground of appeal is that the
sheriff erred in law in holding that since the defender's objections went to
the relevancy of the pursuer's statement of claim the defender ought to have
raised the issue of the competency (sic) of the pursuer's statement of claim at
the first hearing and it was now too late to do so. It is said here too that the defender could
not have reasonably anticipated at the first hearing the line which the
pursuer's evidence would take. Having regard
to the conclusions which I have reached on the other four grounds of appeal, I
do not think that it is necessary that I should express an opinion on this
particular ground of appeal. Even if it
be correct that the sheriff erred in law as claimed by the defender (and I do
not say that he did), I cannot see how this particular error in law should
affect the outcome of this appeal.
[27] In conclusion, I may say that, in light of
his written note of proposed defence, I think that the defender was fortunate
that he was not ordained to lead at the proof (see rule 8.11). I say this since, as already noted, there was
never any suggestion in the written note of proposed defence that the pursuer
was not in principle entitled to payment of the sum sued for. The only ground of defence was that, the
pursuer having been in breach of contract, the defender had been entitled to
withhold the sum of £1,450 to take account of the fact that he was required to
pay a replacement builder to finish off the work which had not been completed
by the pursuer. It was for the defender
to establish this ground of defence which is why I think that he ought to have
been ordained to lead at the proof. And,
not having given evidence at all, let alone evidence in support of his single
ground of defence, the defender in my opinion cannot now be heard to complain
that the sheriff should have granted decree against him for payment of the sum
of £1,450.
[28] It was agreed that the question of the
expenses of the appeal should be reserved for a further hearing.
