Scottish Sheriff Court Decisions

Sheriffdom of Grampian Highland and Islands at Banff

A199/06

Judgement of Sheriff Philip Mann

In the Cause

Aberdeenshire Council, Pursuers

Against

Bruce Plant Limited, Defenders

Banff 11 April 2011

Act: Taylor

Alt: Walker

The Sheriff, having heard parties procurators in Debate, SUSTAINS the Defenders' preliminary plea-in-law number 1 to the extent only of EXCLUDING from Probation articles 3, 4 and 5 of condescendence for the Pursuers and DISMISSING the Pursuers' craves 1, 2 and 3; thereafter ALLOWS parties a proof of their respective averments anent crave 4; meantime RESERVES the question of expenses of today's debate; Continues the cause to a Procedural Hearing on 24 May 2011 at 10:00 am within the Sheriff Court House, Low Street, Banff for the purpose of fixing a date for the diet of proof and to hear parties on the question of the reserved expenses.

Sheriff

Note

1. The Calling

1.1 This case called before me today, 11 April 2011, for debate on the Defenders' preliminary plea number 1 which is a general plea to the relevancy and specification of the Pursuers' averments. The Pursuers were represented by Mr Taylor, solicitor and the Defenders were represented by Mr Walker, Solicitor.

1.2 At the outset of the hearing I confirmed with Mr Walker that the debate was to be in relation to the Defenders' Rule 18 Note number 24 of process. There were previous Rule 18 Notes and also a Rule 22 Note which, I was advised, could be put to one side notwithstanding the reference to the Rule 22 Note in the interlocutor of 18 January 2011. Number 24 of process sets out the attack on the Pursuers' pleadings as contained in the closed record number 26 of process, which resulted from the amendment allowed by the interlocutor referred to.

1.3 I pronounced my decision orally immediately at the end of submissions. Parties requested that I write this note.

2. Background

2.1 The Pursuers have four separate craves, numbers 1 to 4, each for payment of a sum of money. Each crave is supported by a separate article of condescendence, numbered 3 to 6 inclusive, respectively. Each crave claims payment of what is said to be a balance of monies due to the Pursuers in respect of a separate contract for road construction works said to have been carried out by the Pursuers as sub contractors to, and on the instructions of, the Defenders.

3. The Debate

3.1 The Defenders' Submissions

3.1.1 Mr Walker opened the debate. His point was short. It was that in respect of each of the four craves the supporting article of condescendence disclosed that the Pursuers founded their case on certain documents which they had failed to produce. The documents referred to were not incorporated into the Pursuers' pleadings and so it was not possible to look to them for specification of the work contracted for between the parties or the method by which the value of that work was to be measured. In the absence of the documents the Pursuers' pleadings in respect of each of the four craves were so lacking in specification that they did not give fair notice to the Defenders of the case which they faced and were thus irrelevant.

3.1.2 In support of his submission Mr Walker referred me to paragraph 9.67 in MacPhail "Sheriff Court Practice" third edition. There, it is pointed out that "where a party's case is founded upon a document .... the document must be produced and specifically described. Its critical provisions must be accurately and clearly specified, and either quoted in the averments or, if overlong, expressly incorporated and held as repeated in them by reference brevitatis causa." In the same paragraph it is pointed out that a document not thus dealt with cannot be considered by the Court and cannot be looked at by the court in determining the relevancy of the averments, unless a joint minute is lodged dispensing with probation of the document. Mr Walker pointed out not only that there had been no incorporation of the documents in the pleadings but also that, in breach of the ordinary cause rules, the documents had not been lodged as productions.

3.1.3 On the foregoing basis, Mr Walker moved me to sustain his preliminary plea number 1 and to dismiss the action in its entirety.

4. The Pursuers' Submissions

4.1.1 Mr Taylor began by acknowledging that there was "force" in the Defenders' submissions relative to craves 1, 2 and 3 and their supporting articles of condescendence. When I enquired as to whether this amounted to a concession that the Defenders' submissions should prevail he was reluctant to go to that length but contented himself by saying that the Pursuers would abide by my decision in that regard. He made no further submissions in respect of craves 1, 2 and 3.

4.1.2 In regard to crave 6 Mr Taylor's position was different. He pointed out that article 6 of condescendence went into some considerable detail in describing the work carried out by the Pursuers and the method by which the amount due to the Pursuers as claimed in crave 4 was calculated. The detail set out in article 6 was culled from a letter from the Defenders to the Pursuers dated 29 January 2001 which had been produced by way of the Pursuers' third inventory of productions number 5/3 of process, which letter was "referred to for its terms" in article 6.

4.1.3 Mr Taylor moved me to repel the Defenders' preliminary plea and to fix a proof.

5. The Defenders' reply

5.1 In a brief reply, Mr Walker pointed out that the first part of article 6 of condescendence followed exactly the scheme of articles 3, 4 and 5 by referring to documents upon which the Pursuers apparently founded their case but which they had failed to produce and incorporate into their pleadings. That being the case and despite the greater degree of specification in article 6 compared with the other articles, there was still such a lack of specification that crave 4, supported by article 6, should suffer the same fate as craves 1, 2 and 3.

6. Discussion and Decision

6.1 The position with regard to craves 1, 2 and 3 seems to me to be quite straightforward. The Pursuers rest their case on documents which they have not produced and have not incorporated into their pleadings. Mr Taylor's submissions amounted to a concession that the Defenders' criticisms were well founded. It must follow from that that the Defenders' preliminary plea falls to be upheld in relation to these craves, it being no part of my function to test the soundness of the Defenders' submissions in the absence of any contrary submissions. In any event, I was persuaded by Mr Walker's argument under reference to the passage in MacPhail to which he referred.

6.2 The position is different as regards crave 4 and the relative article 6 of condescendence. I do not think that a reference to a document "for its terms" amounts to incorporation of that document into the pleadings. If it does not amount to incorporation then I am not entitled to look at it in assessing the relevancy of the Pursuers' averments. As this was not a point upon which parties saw fit to address me I prefer to dispose of the issue relating to crave 4 without reference to the document which forms the third inventory of productions for the Pursuers. Looking to the terms of article 6 in isolation there appears to me to be a significant amount of specification sufficient in its terms to give fair notice to the Defenders of the basis of the Pursuers' claim against them. The case in support of crave 4 is otherwise relevantly pled and it is my view that the Pursuers' pleadings must survive the Defenders' challenge.

7. Disposal

7.1 In light of the above, I have sustained the Defenders' preliminary plea number1 but to the extent only of excluding from probation articles 3, 4 and 5 of condescendence and dismissing the Pursuers' craves 1, 2 and 3. Quoad ultra the parties are entitled to a proof of their averments. Parties were agreed that it should be a proof de plano.

7.2 The parties requested that I appoint the cause to a procedure roll for the purpose of fixing a date for the proof. They further requested that I reserve the question of expenses of the debate meantime. I have acceded to both of these requests and have provided accordingly in my interlocutor.