Christie Owen & Davies Plc t/a Christie & Company v Campbell
| Jurisdiction | Scotland |
| Judgment Date | 25 February 2009 |
| Neutral Citation | [2009] CSIH 26 |
| Date | 25 February 2009 |
| Docket Number | No 36 |
| Court | Court of Session (Inner House) |
Court of Session Inner House Extra Division
Lord Osborne, Lord Carloway, Lord Clarke
Practice - Pleadings - Relevancy - Assignation - Intimation - Whether assignation intimated by solicitor's letter and accompanying documents
The appellants averred that they were licensed premises selling agents who had been appointed as exclusive selling agent for the tenant in the sale of the business of a public house under a sole selling right agreement. The appellants averred that they had marketed the business pursuant to the agreement and introduced the tenant to a prospective purchaser who subsequently took an assignation of the lease of the premises and business. The respondents acted as solicitors on behalf of the tenant in the sale of the business. The agreement provided that the tenant authorised the respondents to pay the appellants' fees out of money received by them pursuant to the agreement. The appellants raised an action for payment of their fees against the tenant and the respondents. The appellants averred that the agreement incorporating the mandate and assignation was intimated to the respondents by letter on 20 December 2006 and the documents enclosed therewith were received by the respondents simultaneously. There was no dispute as to theses facts, and the respondents admitted that they had acted as solicitors in the sale of the public house and business.
The appellants argued that there had been effective informal intimation of assignation at common law, the combined effect of sending the letter, by virtue of the accompanying invoice and copy agreement.
The respondents argued that neither a distinct written intimation putting before the debtor the nature and effect of the assignation nor an assertion of claim whereby the assignee claimed the rights under the deed of assignation had been given and therefore no enforceable assignation of rights had been made.
Held that having regard to the letter relied upon together with the documents enclosed therewith, effective intimation of assignation had been given (para 13); and appeal allowed and decree granted.
Observed that it is always a question of fact and circumstances whether intimation of an assignation has been made (para 16).
Christie, Owen and Davies plc raised an action of payment in the commercial court in the sheriff court at Glasgow against Anne Campbell and Vallance Kliner & Associates. Following debate, the sheriff (AF Deutsch) dismissed the action in so far as directed against the second defenders. The pursuers appealed to the Sheriff Principal of Glasgow and Strathkelvin sitting at Glasgow (JA Taylor) who refused the appeal. That decision was appealed to the Court of Session.
Cases referred to:
Donaldson v OrdUNKUNK (1855) 17 D 1053; 17 Jur 625
Gallemos Ltd (In Receivership) v Barratt Falkirk LtdSC 1989 SC 239; 1990 SLT 98
Libertas-Kommerz GmbH v JohnsonSC 1977 SC 191; 1978 SLT 222
Wallace v Davies and ChambresUNKUNK (1853) 15 D 688; 25 Jur 415; 2 Stuart 411
Textbooks etc. referred to:
Gloag, WM, and Irvine, JM, The Law of Rights in Security: Heritable and Moveable including Cautionary Obligations (W Green, Edinburgh, 1897), p 486
McBryde, WW, The Law of Contract in Scotland (3rd ed, W Green/Scottish Universities Law Institute, Edinburgh, 2007), paras 12.93-12.95
Wilson, WA, The Scottish Law of Debt (2nd ed, W Green, Edinburgh, 1991), para 27.3
The cause called before an Extra Division, comprising Lord Osborne, Lord Carloway and Lord Clarke, for a hearing on the summar roll, on 13 February 2009.
At advising, on 3 February 2009, the opinion of the Court was delivered by Lord Clarke-
Opinion of the Court- [1] The appellants are, inter alia, licensed premises selling agents. The first defender, who had not entered appearance in the process, it is averred by the appellants, was a tenant of the bar situated at and known as the Waldorf Bar, 59 Cambridge Street, Glasgow. By an agreement, dated 13 July 2005 described as 'the sole selling right agreement' (hereinafter referred to as 'the agreement'), the first defender appointed the appellants as her exclusive selling agent in the sale of the said public house. The appellants aver that, in pursuance of that agreement, they marketed the premises and, in due course, introduced the first defender to a prospective purchaser, namely the Iona Club Ltd. It is averred that the said Iona Club Ltd subsequently took an assignation of the lease of the premises and acquired the business relating thereto in or about 6 February 2007.
[2] The agreement, the full terms of which are incorporated in the pursuers' pleadings, brevitatis causa, incorporates a mandate which is referred to by the appellants as operating 'as a procuratory in rem and assignation upon the intimation of the Agreement to any party acting as Solicitors for the first defender in the sale of the Business'. The respondents acted as solicitors on behalf of the first defender in the sale of the public house premises and associated business. The said agreement provided that the first defender authorised the respondents to pay out of money received by them, the fees requested by the appellants in any invoice submitted by them to the respondents, pursuant to the agreement, and directed the respondents not to release any proceeds arising from the disposal of the business to any person up to the amount of the invoice, until it had been paid, except for payment of mortgages and charges and the legal costs of sale. The agreement also contained an instruction by the first defender to the appellants to communicate these instructions to the respondents.
[3] In the present proceedings the appellants claim that, in terms of said agreement, they are entitled to a fee calculated in accordance with its provisions, which amounts to 7,966 which, together with VAT, brings out a total sum due to them of 9,360.05. The appellants raised the...
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