Alistair Greig V (1) Kevin Wallace Alexander Davidson And (2) Iain Stuart Wilson
| Jurisdiction | Scotland |
| Judge | Lord Stewart |
| Neutral Citation | [2015] CSOH 44 |
| Court | Court of Session |
| Docket Number | A224/13 |
| Published date | 21 April 2015 |
| Date | 21 April 2015 |
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 44
A224/13
OPINION OF LORD STEWART
In the cause
ALISTAIR GREIG
Pursuer;
against
(1) KEVIN WALLACE ALEXANDER DAVIDSON and (2) IAIN STUART WILSON
Defenders:
Pursuer: Thomson; Brodies LLP
Defenders: Paterson; CMS Cameron McKenna LLP
21 April 2015
[1] This ordinary action for payment called on the procedure roll for a debate on both parties’ preliminary pleas on 12 February continued to 13 February 2015. The debate took place on the closed record dated 2 September 2014 no 11 of process. I made avizandum and have now decided to allow a proof before answer on the whole of the parties’ respective averments reserving the question of relevancy.
Background and summary of the issues
[2] The defenders are the surviving partners of KWAD Solicitors, Aberdeen. In March—April 2008 KWAD concluded three sets of missives on behalf of Alistair Greig the now pursuer for the purchase off plan of three houses at The Park development, Pittodrie, Aberdeen. When the date of entry arrived on 19 December 2008 Mr Greig failed to pay the purchase prices. The developers rescinded the missives on three separate dates in 2009 and 2010. The developers then sued Mr Greig for damages for breach of contract in Peterhead Sheriff Court. The initial proof was restricted to liability. Mr Greig’s defence in the sheriff court was that he was not contractually bound because KWAD had acted without his authority in concluding missives. The learned sheriff found that there had been authority to transact, that Mr Greig was in breach of contract and that the developers were entitled to rescind the missives in each case. He also found Mr Greig liable for any losses incurred by the developers and continued the cause for further procedure. The action was settled by payment to the developers in the sum of £125,000. Mr Greig now sues the former partners of KWAD, the current defenders, for that sum and for legal expenses incurred, a total sum of £192,972.42 with interest.
[3] In the present action Mr Greig now the pursuer avers that he did not instruct the defenders to act for him in the matter, far less to enter into missives; and that by doing so without authority they caused him the loss for which he now seeks reparation. This is his primary basis of claim. He states an alternative basis of claim, introduced by the words: “Separatim esto the defenders had been instructed by the pursuer to conclude missives on his behalf (which is denied)...” The alternative case continues to the effect that the defenders were in breach of their professional duties of care to the pursuer with the result that they negligently concluded missives in terms that were not agreeable to the pursuer and caused the pursuer the loss for which he now seeks reparation.
[4] The interest of the case lies in the identity of the middle-man from whom the pursuer acquired “reservations”, if that is the right word, on the properties. The pursuer paid a total of £15,000 to this intermediary. The intermediary was Purplesky.com LLP. Purplesky belonged to Keith Ingram a former partner in KWAD. At the time Keith Ingram was also said to be a consultant with or in or employed by KWAD and worked from their office. (The pleadings say “employed by” but I would be sceptical about that and on the information to hand neither counsel can confidently state what the true position was and more specifically in what sense, if any, Mr Ingram was an agent of KWAD.) Mr Ingram was the only person in the office who had direct dealings with the pursuer. The defenders claim that they received the pursuer’s instructions via Mr Ingram. In the sheriff court Keith Ingram testified that he had not received and did not pass on the pursuer’s instructions to purchase the properties. The learned sheriff rejected Mr Ingram’s evidence—a mysterious business all round.
[5] As is correct, the defenders’ preliminary plea is argued first. Mr Paterson for the defenders moves me to sustain the defenders’ general preliminary plea and to dismiss the action; or, failing dismissal, to exclude the esto case from probation. He supports the motion with submissions as to (1) the irrelevancy of the inconsistent, alternative averments on which the claim is based and (2) the irrelevancy of the averments about causation of loss in the alternative case. During the course of the argument Mr Paterson develops a submission that (3) the pursuer’s case as a whole must fail on the weaker alternative rule, the alternative case being irrelevant because of the failure to grapple with causation [note of argument for the defenders no 14 of process and note of averments to be deleted no 16 of process]. Mr Thomson for the pursuer opposes the pursuer’s motion and moves me in turn to sustain the defenders’ preliminary plea to the effect of excluding from probation the defenders’ averments supporting the defences on the merits and quoad ultra to allow a proof before answer reserving all pleas. Such a proof would be restricted to quantum of damages. Mr Thomson does not press the argument that decree de plano should be granted [pursuer’s note of argument no 13 of process and note of averments to be deleted no 15 of process].
Alternative and inconsistent averments of fact
[6] Mr Paterson’s submissions on the first point boil down to this: it cannot be in the interests of justice to allow a claimant to say on the one hand: “I did not give instructions: but if I am lying and I did give instructions the defenders made a mess of my instructions.” These are flagrantly inconsistent stances. The propositions which Mr Paterson derives from the authorities are these: there is no general rule permitting claims to proceed on alternative and inconsistent averments of fact; the determining issue is whether it is in the interests of substantive justice to allow inconsistent claims to go to forward; and the court is more easily persuaded to allow inconsistent claims to proceed where ignorance on the part of the pursuer as to the true cause of action is justifiable [T Welsh ed, Macphail on Sheriff Court Practice, 3rd edn (SULI, Edinburgh, 2006), §§ 9.35―9.36; London & Caledonian Marine Insurance Co v Edinburgh Shipping Co (1867) 5 M 982 at 985―986 per Lord Benholme, at 986 per Lord Neaves, at 987 per Lord Justice-Clerk; Cass v Edinburgh & District Tramways Co Ltd (1908) 15 SLT 957 at 958; Clarke v Edinburgh & District Tramways Co Ltd 1914 SC 775 at 780―781 per Lord President; Smart v Bargh 1949 SC 57 at 61―62 per Lord President; M v M 1967 SLT 157 at 158; Safdar v Devlin 1995 SLT 530 at 535C―535I; Royal Bank of Scotland Plc v Harper Macleod 1999 SLT (Sh Ct) 99 at 102B―E]. Mr Paterson submits that the correct ratio of Safdar is not that the pursuer’s alternative case was stated as a retort to the defender’s late change of front. It is more that the pursuer was in justifiable ignorance of the supposed facts constituting the newly contrived defence. In the present case, did Alastair Greig give instructions or didn’t he? He must know. It is not in the interests of justice, says Mr Paterson, to allow Mr Greig’s inconsistent averments to go to proof.
[7] In reply Mr Thomson cites, in addition, Maclaren [J Maclaren, Court of Session Practice (Edinburgh, 1916)] at page 311: “The pursuer may state alternative grounds of action which are inconsistent with each other; but if not alternative the averments must not be self-contradictory.” The same point is made, with more elaboration extending into discussion of the “weaker alternative” question, by Sheriff Dobie [W Dobie, Law and Practice of the Sheriff Courts in Scotland (Edinburgh, 1952)] at 158]. The statements of the rule by Maclaren and Dobie were endorsed, Mr Thomson submits, by the Lord President (Cooper) in the case about one of the famous Carbeth huts, Smart v Bargh [above] at 61. I note however that the Lord President added: “But equally it appears to me that the Court must always retain supervision and control over the extremer types of case... in which it would plainly be incompatible with substantial justice to the opposite party that a case should be allowed to proceed on such inconsistent averments and without the party making those averments being forced to choose between the alternative cases he seeks to make.” The Lord President’s “But equally” introduces a note of equivocation.
[8] Two factors, according to the Lord President in Smart [above] at 61, make it “easier” for the Court to allow proof of “alternative cases based on inconsistent averments”. The Lord President’s factors are: (1) where there is justifiable ignorance of the true state of affairs; and (2) where the averments are the defender’s (for the pragmatic reason that otherwise the defender might fall foul of the rule requiring all competent defences to be put forward at the same time). My reading of this qualification is that it applies to control what the Lord President called “extremer cases”. Putting the Lord President’s “but equally” qualification in context by looking at the whole case report including the arguments of the parties, I think that the general rule is as I state it below.
[9] I observe that in some ways the fact situation in Safdar v Devlin [above] is the mirror image of the situation in the present case. In Safdar the missives were allegedly defective. The primary claim in Safdar was for professional negligence. The last-minute defence was that the missives had been dictated by the client’s husband. The pursuer then stated an alternative case that, esto the client’s husband had dictated the missives, the solicitor subsequently adopted them and became liable for the defects in that way. The Lord Ordinary allowed a proof before answer. In the present case the pursuer has pled his primary claim (no authority to transact) and his alternative claim (negligence) together, at the outset: but this is understandable since he knows and knew in advance what the first line of defence would...
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