Dunlop v McGowans
| Jurisdiction | Scotland |
| Judgment Date | 14 July 1978 |
| Docket Number | No. 3. |
| Date | 14 July 1978 |
| Court | Court of Session (Inner House - Second Division) |
SECOND DIVISION.
Lord Stott.
PrescriptionQuinquennial prescriptionPeriod"Appropriate date" as terminus a quoDate on which obligation to make reparation became enforceable- "Date when the loss, injury or damage occurred"Prescription and Limitation (Scotland) Act 1973 (cap. 52), secs. 61, 11,2 14 (1),3 Sch. 1, para. 1 (d), (g).4
PrescriptionPeriodTransitional provisionIntroduction of new extinctive quinquennial prescriptionLimited retrospective effect"Time occurring before the commencement of this Part of this Act shall be reckonable towards the prescriptive period in like manner as time occurring thereafter, but subject to the restriction that any time reckoned under this paragraph shall be less than the prescriptive period"Prescription and Limitation (Scotland) Act 1973 (cap. 52), sec. 14 (1).3
A firm of solicitors failed to serve a notice to quit on a tenant timeously, i.e., 40 days before Whitsunday 1971. As a result their client was unable to obtain vacant possession until Whitsunday 1972. On 3rd November 1976 the client raised an action against the agents, based on negligence and breach of contract. It was argued in their defence that any obligation to make reparation had been extinguished by the
quinquennial prescription in terms of sec. 6 of the Prescription and Limitation (Scotland) Act 1973, the terminus a quo of the prescriptive period being at latest Whitsunday 1971, when the client suffered loss, injury or damage. For the client it was maintained that (a) the prescriptive period started to run only when loss actually occurred; thus each item of loss arising after 3rd November 1971 was unaffected by prescription; (b) in any event the terms of sec. 14 (1) (a) meant that the period from Whitsunday 1971 to the commencement of Part I of the Act on 25th July 1976 could not be taken into account in computing the prescriptive periodHeld (1) that the prescriptive period began when the obligation to make reparation became enforceable, i.e., when there was a concurrence of injuria and damnum. The terminus a quo was fixed as soon as any form of loss, injury or damage followed upon a breach of legal duty; (2) that upon a proper construction of sec. 14 (1) (a), any obligation affected by the quinquennial prescription and enforceable prior to 25th July 1976 would in the absence of interruption be extinguished either five years after it became enforceable, or on 25th July 1976, whichever event last occurred; (3) that accordingly in the present case any obligation to make reparation had been extinguished on 25th July 1976. The reclaiming motion should be allowed, and the action dismissed.
James Robert Wight Dunlop raised an action in the Court of Session against M'Gowans, Solicitors, Dumfries, and James Bertram M'Gowan, David Crawford Kellar and K. A. Ross, the partners thereof, concluding "For payment to the pursuer by the defenders jointly and severally of the sum of 20,634.86 Sterling with interest thereon at the rate of eleven per centum per annum from 4th April 1975 or such other date as the Court shall determine; and for the expenses of the action."
The parties averred inter alia: (Cond. 1) "The parties are as designed in the instance. The second, third, fourth and fifth defenders are the whole partners of the first defenders, who are the successors to the firm of J. H. M'Gowan, Son & Brydon. The whole partners of said latter firm at the material time were the second and third defenders." (Ans. 1) "Admitted." (Cond. 2) "In about June 1970 the pursuer became interested in purchasing heritable subjects being two buildings known as 2/8 Queensberry Street, Dumfries. Said buildings which were then the property of Dumfries Town Council, each consisted of a shop on the ground floor with storage accommodation and residential flats above. Part of one of said buildings was leased at said time to Dumfries and Maxwelltown Co-operative Society and the terms of the lease provided that it continued from year to year but could be terminated by notice in writing forty days before Whitsunday in any year. Said leased premises consisted of a ground floor shop with two rooms above knocked into one for use as a store. Thereafter the third defender acting as agent for the pursuer and on his instructions entered into negotiations and eventually concluded missives with the said Town Council for the purchase of said subjects at a price of 7,500 subject to tenants' rights. At said time the third defender knew of the terms of said lease. He also knew that the pursuer wished to purchase said subjects for the purposes of developing the whole thereof as an investment. At said time the third defender was a partner in the firm of J. H. M'Gowan, Son & Brydon. Reference is made to Condescendence 1 hereof. The pursuer took entry of said subjects on or about 11th December 1970 and shortly thereafter he opened a health food shop in the vacant shop. Thereafter on a number of occasions the pursuer reminded the third defender to give the requisite notice of termination of said lease. Indeed, so frequently were such reminders given that the third defender became annoyed and told the pursuer to get off his back or words to that effect. In or about May 1971 the third defender telephoned the pursuer and asked him to come and see him. When the pursuer did so, the third defender showed him a letter which he had received from the said Co-operative Society pointing out that the notice to quit served on them was three days too late. The said lease was accordingly not terminated until Whitsunday 1972 and the pursuer was unable to obtain vacant possession of said leased premises until said date. As a result the puruser sustained the serious loss and damage hereinafter condescended upon. Some of said residential flats, of which there were three, had tenants at the time of said missives but all were vacant well before Whitsunday 1971. The defenders' averments in answer are denied save in so far as coinciding herewith." (Ans. 2) "Admitted that in 1970 the pursuer became interested in purchasing heritable subjects known as 2/8 Queensberry Street, Dumfries. Admitted that the said subjects were then the property of Dumfries Town Council. Admitted that the said subjects comprised two shops on the ground floor with storage accommodation and residential flats above. Explained that there were three such flats, each of which was occupied by a tenant under a protected or regulated tenancy. Admitted that part of the said subjects was leased to Dumfries & Maxwelltown Co-operative Society Limited. Admitted that the lease was a lease from year to year which could be terminated by notice in writing forty days before Whitsunday in any year. Admitted that the said leased premises consisted of a ground floor shop with a store above. Admitted that the third defender entered into negotiation and eventually concluded missives, with Dumfries Town Council for the purchase of the subjects at 2/8 Queensberry Street at a price of 7,500 subject to tenants' rights. Admitted that the third defender acted as agent for the pursuer and on his instructions. Admitted that the third defender was at the time a partner in firm of J. H. M'Gowan Son & Brydon. Admitted that the third defender knew of the terms of the said lease. Admitted that the pursuer took entry to the subjects. Explained that he took entry to the vacant shop on 29th October 1970. Admitted that he thereafter opened a health food shop in part of the vacant shop. Admitted that on 20th or 21st April 1971 the third defender telephoned the pursuer and asked him to come and see him. Admitted that the pursuer did so. Explained that at a meeting within the third defender's office on 20th or 21st April 1971 the third defender informed the pursuer that a notice to quit the leased premises at Whitsunday 1971 had been sent to Dumfries & Maxwelltown Co-operative Society Limited; that the said notice had been sent five days too late; and that Dumfries & Maxwelltown Co-operative Society Limited would be entitled to remain in the said premises, if they wished, until Whitsunday 1972. The pursuer instructed the third defender to see whether Dumfries & Maxwelltown Co-operative Society Limited would agree to vacate the said premises at an earlier date. Admitted that the said lease was not terminated until Whitsunday 1972. Admitted that the pursuer was unable to obtain vacant possession of the said leased premises until that date. Quoad ultra denied." (Cond. 3) "The pursuer's said failure to obtain vacant possession of said leased premises at Whitsunday 1971 was caused through the fault and negligence et separatim breach of contract of the third defender for which the defenders are jointly and severally liable. It was his duty et separatim it was an implied term of his agreement to act as the pursuer's agent to take reasonable care to act in the best interests of the pursuer. He knew that said lease could only be terminated by notice in writing forty days prior to Whitsunday in any year. He knew that the pursuer wished said lease to be terminated at Whitsunday 1971. He had instructions to that effect. It was reasonably foreseeable by him that if said lease was not so terminated at said date the pursuer might suffer loss and damage. It was reasonably practicable for him to serve such notice as to result in termination of said lease at said date. In these circumstances it was his duty to take reasonable care so to serve such notice as to result in termination of said lease at said date. In said duties the third defender culpably failed et separatim materially breached said agreement and so caused the pursuer loss and damage. He failed to take reasonable care to act in the best interests of the pursuer. He failed to serve such notice as to result in termination of said lease at Whitsunday 1971. No solicitor of ordinary skill acting with ordinary care would in the circumstances have failed to serve such notice as to...
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