Aea Recruitment Consultants (edinburgh) Limited V. Alexander Mcnaughton And Others
| Jurisdiction | Scotland |
| Judge | Lord Brailsford |
| Neutral Citation | [2006] CSOH 83 |
| Court | Court of Session |
| Date | 26 May 2006 |
| Published date | 26 May 2006 |
| Docket Number | A1254/03 |
| Year | 2006 |
| OUTER HOUSE, COURT OF SESSION [2006] CSOH 83 | |
| A1254/03 | OPINION OF LORD BRAILSFORD in the cause AEA RECRUITMENT CONSULTANTS (EDINBURGH) LIMITED Pursuers; against ALEXANDER McNAUGHTON and OTHERS Defenders: ________________ |
Pursuers: Murphy, Q.C.; McClure Naismith
Defenders: I. Ferguson, Q.C.; Simpson & Marwick, W.S.
26 May 2006
[1] This case called before me for discussion on the Procedure Roll on 10 February 2006. I was invited by counsel for the defenders to uphold his first plea-in-law, a general plea to the relevancy and specification of the pursuers' pleadings, and refuse probation to the pursuers' averments in article XIII of condescendence or, in the alternative, to delete averments in the same article at page 60C of the Closed Record (As Further Amended) where a claim was made in respect of National Insurance Contributions paid by the pursuers in respect of replacement staff. Mr Ferguson, Q.C. for the defenders accepted that my upholding of his primary motion would result in dismissal of the case in respect of the fifth, damages, conclusion. Mr Murphy, Q.C. for the pursuers moved me to allow a proof before answer of all his averments.
[2] The pursuers seek interdict, delivery of certain items and damages against the defenders as a result of actions which are averred to have taken place in May 2003. The argument advanced on behalf of the defenders was confined to an attack on the relevancy of averments in article 13 of condescendence designed to support the fifth conclusion of the summons, the claim for damages. The argument advanced on behalf of the defenders was focused in the Second Note of Arguments for the Defenders (No. 48 of process).
[3] Counsel for the defenders indicated that his argument fell into three parts, which he identified as (a) a notice point (b) a quantification point and (c) a subsidiary point. These were essentially ways of characterizing the argument set forth in his note of argument which set forth two grounds of attack on the pursuers' averments in support of their case for damages caused by the defenders' alleged breach of duty. These arguments for the defenders were, firstly, that before any loss claimed by the pursuers could be quantified they required to prove that clients, candidates and staff would not have left the pursuers but for the defenders' actions. It followed that, in the language of the Note of Arguments,
"[T]he crucial first stage is to identify the clients, candidates and staff whom it is said left the pursuers and why they did so. If their leaving can be attributed to the defenders actions then, and only then, can the breach be said to have caused a loss."
As a matter of averment it was submitted that there were no averments to lay the basis of this claim. Secondly, an argument was set forth, that a claim was made by the pursuers (in article XIII of condescendence at page 60C of the Closed Record (as further amended)) in respect of loss said to have been incurred in payment of National Insurance Contributions for replacement staff. The relevancy of this head of claim was challenged on the basis that had the staff who are said to have left the pursuers' employment as a result of the defenders' actions remained then the pursuers would have required to pay National Insurance Contributions on their behalf. There is accordingly, it was submitted, no loss.
[4] The first of these arguments was represented as a matter of relevancy. The argument essentially arose from the structure of the pursuers averments of loss, which as already noted are set forth in article XIII of condescendence. There it was stated that as a result of various breaches of duty on the part of the defenders the pursuers had suffered loss
"...in relation to sales which would have been generated from clients, candidates and staff who would not have left the pursuers but for the actions of the defenders" (56A).
For the defenders it was contended that sales and therefore revenue was obtained by the pursuers from placement of candidates with employers who then paid certain sums for this service. What, it was maintained, the pursuers had done in calculating loss was to calculate profit downturn compared to historical profit trend, not to attempt to link loss to loss of sales generated by the clients, candidates and staff who left. This it was...
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