Kenneth Ramsden Against Santon Highlands Limited
| Jurisdiction | Scotland |
| Judge | Lord Kinclaven |
| Neutral Citation | [2015] CSOH 65 |
| Court | Court of Session |
| Published date | 02 June 2015 |
| Year | 2015 |
| Date | 02 June 2015 |
| Docket Number | A558/13 |
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 65
A558/13
OPINION OF LORD KINCLAVEN
in the cause
KENNETH RAMSDEN
Pursuer;
against
SANTON HIGHLANDS LIMITED
Defender:
Pursuer: Campbell QC; Thorntons Law LLP
Defender: Thomson; Burness Paull LLP
2 June 2015
Introduction and overview
[1] This is an ordinary action (A558/13) in which the pursuer (“Mr Ramsden”) seeks inter alia:
(1) production and reduction of a court decree;
(2) production and reduction of missives relating to “Plot 4” Courtyard Cottages, Fort Augustus,
(3) production and reduction of a settlement agreement; and
(4) damages of £41,500 for alleged breach of missives by the defender (“Santon”).
[2] The decree in issue is a decree of the Court of Session dated 10 October 2012 which was pronounced in an action (“the first action”) between the present pursuer (in which Mr Ramsden was the defender) and the present defender (in which Santon was the pursuer) being the action with Court Reference A730/09.
[3] The missives concerned are between the pursuer and the defender and relate to property known as “Plot 4”, Courtyard Cottages, The Highland Club, Fort Augustus Abbey, Fort Augustus. The missives comprise formal letters passing between Burness LLP (for the defender) and Messrs McAndrew & Jenkins (for the pursuer) dated in July and August 2005 and December 2008. Missives were finally concluded on or around 23 December 2008.
[4] The settlement agreement was also referred to as “Heads of Terms of Settlement” and is contained in a document dated 17 May 2011 signed by counsel on behalf of both parties.
[5] The case came before me for debate (along with two other related cases) on the procedure roll on 30 and 31 October 2014. During the debate the pursuer lodged a minute of amendment. The pleadings were amended on 30 December 2014 in terms of the minute and answers nos 15 and 16 of Process. The amended record is no. 17 of process. The debate resumed on 27 February 2015.
[6] Mr Thomson appeared for the defender at the debate. He invited me to sustain the defender’s first and second pleas-in-law and to dismiss the action. The defender is a property development company.
[7] Mr Campbell appeared for the pursuer. He invited me to allow a proof before answer.
[8] Having considered the pleadings, and the submissions of parties, I have reached the conclusion (for the reasons outlined more fully below) that the defender’s submissions prevail.
[9] Accordingly, I shall sustain the defender’s first and second pleas-in-law, repel the pursuer’s pleas-in-law and dismiss the action.
[10] I shall reserve meantime the question of expenses.
[11] I would outline my reasons as follows.
The general background
[12] The present action is at the instance of Mr Ramsden. It has Court Reference A558/13 and it relates to “Plot 4” Courtyard Cottage. Both counsel treated this case as the lead action and I shall do likewise.
[13] There are, however, two other related actions against the present defender involving similar issues in relation to relevancy. The second action is also at the instance of Mr Ramsden (Court Reference A559/13) and it relates to “Plot 3”. The third action is at the instance of Ian Thomas (Court Reference A556/13) and it relates to “Plot 11” and “Plot 5”.
[14] The pleadings in the current case are contained in the print of the closed record (as amended, (no 17 of process). The pleadings and defender’s original written note of argument (no 13 of process) can be taken as read.
[15] The pursuer’s first plea-in-law is to the effect that there are “exceptional circumstances” to justify reduction of the court decree.
[16] The pursuer’s second plea-in-law relates to the missives and the settlement agreement and is to the effect that the pursuer was induced to enter into the missives as a result of “failure of the defenders to disclose the existence of contaminated land”.
[17] The pursuer’s third plea-in-law is to the effect that the pursuer is entitled to damages as a result of the defender’s breach of “implied obligations under the missives”.
[18] The pursuer’s fourth plea-in-law is to the effect that the pursuer is entitled to retain payment of the purchase price.
The context
[19] As mentioned above, and as appears from article 2 of condescendence, there was an earlier action (referred to as “the first action”) between the parties in this court.
[20] In that action Santon (the present defender) sought (1) declarator that the parties were bound by the missives for the sale and purchase of Plot 4 (“the subjects”) and (2) payment by Mr Ramsden (the present pursuer) to Santon (the present defender) of the sum of £246,500 plus interest in exchange for a valid disposition of the subjects.
[21] Decree in the first action was granted in favour of Santon on 10 October 2012. On that date the court found that the parties were bound by the settlement agreement entered into on 17 May 2011 and pronounced decree in terms of the first and second conclusions of the summons in the first action. In addition the court pronounced decree against Mr Ramsden for payment of the expenses of the minute and answers procedure relating to the settlement agreement in the first action.
Authorities
[22] In the course of the hearing I was provided with various copy authorities – including a lever arch file for the defender.
[23] In particular, during the course of the debate, I was referred to:
- Maclaren, Court of Session Practice (1916), page 401;
- D M Walker, Civil Remedies (1974), pages 179 and 180;
- Maxwell, The Practice of the Court of Session (1980), pages 583 and 584;
- The Consumer Protection from Unfair Trading Regulations 2008 (“the 2008 Regulations”).Reference was made, in particular, to regulation 2(1) (definitions of “consumer”, “professional diligence” and “transactional decision”), regulation 3(4), regulation 6(1)-(4), regulation 19, Part 4A (“Consumers’ Rights to Redress” regulations 27A, 27C, 27E) and regulation 29 (“Validity of agreements”). Part 4A of the 2008 Regulations was added by the Consumer Protection (Amendment) Regulations 2014 2014/870, regulation 3, in relation to contracts entered into, or payments made, on or after 1 October 2014.
- PMP Plus Ltd v Keeper of the Registers of Scotland 2014 SLT (Lands Tr) 79, at paragraphs [51] to [53], [55] to [58] and [118];
- Moyarget Developments Limited v Mathis [2006] CSOH 145 at paragraphs [5], [7], [10], [11], [16], [17], [20] and [40];
- Haigh & Ringrose Ltd v Barrhead Builders Ltd 1981 SLT 157;
- Burnett v Menzies Dougal WS 2006 SC 93, at paragraphs [14] and [17];
- Grant Estates Limited (in liquidation) and Others v The Royal Bank of Scotland plc and Others [2012] CSOH 133, at paragraphs 85, 87, 88, and 93;
- Royal Bank of Scotland plc v O’Donnell and McDonald [2014] CSIH 84, at paragraph [25].
[24] Counsel for the pursuer also referred to:
- Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 - ‘Unfair Commercial Practices Directive’ (“the Directive”).Reference was made in particular to paragraphs (5), (6), (7), (8), (9) (13), (14), and (18) and to the definitions in Article 2 (a), (e), (h), (i), and (k);
- Vapenik v Thurner [2014] 1 WLR 2486, the rubric at page 2486; and
- The Earl of Perth v Lady Willoughby de Eresby’s Trustees (1875) 2R 538, particularly at page 545.
[25] Mention was also made of the well-known case of Jamieson v Jamieson 1952 SC (HL) 44 which provides the test for relevancy of a pursuer’s averment.
[26] There was no joint minute of agreement.
The defender’s position
[27] The defender’s first plea-in-law is in the following terms:
“The present action being based on averments that relate to allegations of misleading omission, misrepresentation and breach of contract, being matters that were competent by way of defence to the First Action but which were omitted from the defence to that action, the present action is incompetent and the defenders should be assoilzied, which failing the action should be dismissed”.
[28] The defender’s second plea-in-law is that:
“The pursuer’s averments being irrelevant et separatim lacking in specification, the action should be dismissed.”
[29] As a result of the pursuer’s amendments and deletions, the defender no longer requires to insist upon paragraphs 16, 21, 22, 23, 26, 32 or 33 of their original note of argument (no. 13 of process). The first sentence of paragraph 17 is also no longer required. [30] Mr Thomson insisted on the defender’s first and second pleas-in-law, and sought dismissal of the action on the following basis:
I The defender’s first plea-in-law: “Competent and Omitted”
[31] Mr Thomson submitted that the defender’s first plea-in-law “Competent and Omitted” should be sustained
[32] This action proceeds on the basis that all that took place in the first action should be undone. In the first action Santon sought to enforce the missives between the parties. The action was defended by Mr Ramsden. In seeking to defend the first action, Mr Ramsden did not advance any of the lines of argument which are advanced in the present action as grounds for reduction of the decrees, the settlement agreement, and the missives. In short, Mr Ramsden cannot now challenge the prior judgment on such grounds, they all being grounds of defence which it was competent to plead in the first action but which he omitted to do. On that basis, the first plea in law should be sustained and the action dismissed.
[33] For completeness, however, a mere failure on the part of the pursuer to appreciate that he might have had other grounds to defend the first action does not in any way affect the applicability of the plea of “competent and omitted”. Effectively, the pursuer could only seek reduction on averments amounting to res noviter, namely facts which were not only unknown to him at the time of the decrees and deeds he seeks to reduce, but which could not have been known to him. The pursuer makes no such averments and thus the action must be...
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