Fkening & Reid, Solcitors In The Cause Balfour & Manson, Llp Against Fleming & Reid, Solicitors
| Jurisdiction | Scotland |
| Judge | Sheriff Principal Mhairi Stephen |
| Court | Sheriff Court |
| Date | 29 April 2014 |
| Docket Number | A909/12 |
| Published date | 03 June 2014 |
| SHERIFFDOM OF LOTHIAN AND BORDERS
Case Number: A909/12
2014SCEDIN 11 | |
|
| Judgment by
SHERIFF PRINCIPAL MHAIRI M STEPHEN
in appeal by
FLEMING & REID, Solicitors, Defenders & Appellant
in the cause
BALFOUR & MANSON, LLP Pursuers & Respondents
against
FLEMING & REID, Solicitors Defenders & Appellants
___________________________
|
Act: Hennessy, Solicitor Advocate for the appellants
Alt: Webster, Advocate for the respondents
EDINBURGH, 29 April 2014
The Sheriff Principal, having resumed consideration of the cause, refuses the appeal; adheres to the sheriff’s interlocutor of 31 October 2013; remits the cause to the sheriff to proceed as accords with regard to further procedure and to fix a Chapter 18 hearing on the minute of amendment for the pursuers and respondents No 17 of process; thereafter finds the appellants liable to the respondents in the expenses of the appeal; allows an account thereof to be given in and remits same, when lodged to the Auditor of Court to tax and to report and certifies the cause as suitable for the employment of junior counsel in the appeal.
(signed) Mhairi M Stephen
NOTE:
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This is an action for payment in which the pursuers are the Edinburgh solicitors and the defenders are the local or Glasgow solicitors in divorce proceedings at the instance of their mutual client Mrs Jacqueline Clark against her husband Alexander Clark.Divorce proceedings commenced in August 2008 in the Court of Session and involved significant financial conclusions in respect of heritable property, capital and aliment at the instance of Mrs Clark.The pleadings indicate that Mrs Clark originally instructed the firm Levy & McRae, Solicitors to act as her local solicitors in the divorce.Levy & McRae had instructed the respondents as Edinburgh agents in respect of the Court of Session proceedings.After the divorce action was raised Mrs Clark then engaged the appellants as her local Glasgow Solicitors and they in turn continued the respondents’ instructions as the Edinburgh correspondents in respect of the divorce action.It appears that the divorce proceedings concluded in July 2010.
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It is not in dispute that the appellants are liable to the respondents in respect of fees and outlays incurred on behalf of Mrs Jacqueline Clark in the divorce.There is no dispute that the respondents provided professional services to Mrs Clark as pursuer in the divorce action as instructed by her and the appellants.
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On the day of the appeal hearing Mr Webster, for the pursuers, tendered a minute of amendment (No 17 of process).The amendment sought to delete the sum craved and substitute £41,324.23.It also made consequential amendments in Article 4 of Condescendence.The pursuers had identified that two of the invoices referred to had been rendered in 2008 to Messrs Levy & McRae.These invoices have been paid.The fact that they had been paid is a relevant averment for the pursuers but otherwise the amendment had no material bearing on the appeal.Mr Hennessy had no objection to the lodging of the minute of amendment and proposed to reserve his position as to answers pending the outcome of the appeal.
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The issue on appeal is one of specification.The appellants argue that the respondents fail to state the basis upon which the pursuers’ fee notes have been charged.There is no specification with regard to the number of hours engaged and the daily or hourly rate.The fee notes are lodged as productions and incorporated in the pleadings.
THE PLEADINGS
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The sheriff, following debate on the parties’ preliminary pleas, issued an interlocutor and note on 31 October 2013 allowing, before answer, a proof thus reserving the parties’ preliminary pleas.The appellants argued that the sheriff ought not to have allowed a proof as the appellants are prejudiced in their preparation for a proof by the lack of specification relating to the contractual agreement as to the basis of charging for the pursuers’ professional services.
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The pursuers’ averments in respect of the contract can be found in Article 3 of Condescendence:
“On or about 20 October 2008 the defenders formally instructed the pursuers to act as their Edinburgh agents. The defenders advised the pursuers that their fees would be paid at the conclusion of the proceedings. A copy of the letter of instruction is produced herewith and referred to for its terms which are repeated herein brevitatis causa. On or about 22 October 2008 the pursuers wrote to the defenders advising that they would wait until the conclusion of the case for payment of their fees. A copy of this letter is produced herewith and referred to for its terms which are incorporated herein brevitatis causa.”
The pursuers go on to aver that in any event the appellants are liable for the pursuers’ fees and outlays by virtue of section 30 of the Solicitors (Scotland) Act 1980. As I have said this is accepted. Further, the pursuers avers “the work was undertaken on the usual Edinburgh agent/local agent basis”. Interestingly, the defenders in Answer 3 do not accept that there is a contract between the parties however no argument was advanced on that basis before me.
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In Article 4 of Condescendence the pursuers make certain averments with regard to the charges made for the services provided and refer to various fee invoices.These are lodged in the first inventory productions for the pursuers (5/1 of process).These averments are met with a simple denial.
APPELLANT’S SUBMISSIONS
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Mr Hennessy appeared on behalf of the appellants.His straightforward proposition was to the effect that the lack of specification as to the basis of charge, the number of hours, the time spent on the case and the failure to stipulate the hourly rate was fundamental in a case involving payment of the respondents’ professional fees and indeed to the issue of what their reasonable remuneration ought to be.The appellants are unable to prepare for proof as they are completely in the dark about the evidence which might be led as to the level and basis of charge.The appellants should not have to guess. There was no basis upon which the court could assess either the reasonableness of the amounts charged or what reasonable remuneration might be.The lack of specification was sufficiently material that it undermined the pursuers’ case and the action ought to be dismissed as irrelevant.Mr Hennessy argued that the appeal should be allowed; the sheriff’s interlocutor of 31 October 2013 recalled; the defenders’ second plea in law sustained and the action dismissed with expenses.
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Mr Hennessy’s simple proposition related to specification.The defenders cannot know how the fees had been charged without someone giving evidence about this. Therefore the appellants are prejudiced and quite unable to prepare for any proof.It is not acceptable for a party to have to wait until proof to know the basis of the opponent’s case.
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I was referred to Macphail Chapter 9 and the following authorities Semple Fraser v Quayle 2002 SLT (Sh Ct) 33; Steelmek Marine and General Engineers Trust v Shetland Sea Farms Ltd 1999 SLT (Sh Ct) 30;Wilkie v Scottish Aviation Ltd 1956 SC 198;Avintair Ltd v Ryder Airline Services Ltd 1994 SC 270 and finally Robert Barry & Co v Doyle 1998 SLT 1238.
- It was submitted that, in the event that the pursuers seek “reasonable remuneration” the pleadings are defective.With reference to Wilkie v Scottish Aviation Ltd there was absent from the pursuers’ pleadings any averments that would allow them to be entitled to rely on custom for charging fees.This is hinted at in the averment in Condescendence 3 which states: “The work was undertaken on the usual Edinburgh agent/local agent basis.”Nevertheless, this is quite insufficient to allow the pursuers to lead evidence from which a court could decide what was or was not reasonable remuneration.There were no specific averments which supported there being a custom which was “reasonable certain and notorious”.There was therefore no relevant case on quantum meruit. In Avintair there had been no concluded contract or agreement as to remuneration. The Inner House stressed the need to plead what is reasonable.A claim for payment quantum meruit may be measured by the ordinary or market rate of payment but there would require to be averments to that effect.In Robert Barry & Co v Doyle the Lord...
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