John Kusz+joyce Ann Kusz V. Messrs Buchanan Burton
| Jurisdiction | Scotland |
| Judge | Lord Osborne,Lord President,Lord Marnoch |
| Neutral Citation | [2009] CSIH 63 |
| Court | Court of Session |
| Docket Number | XA3/08 |
| Date | 15 July 2009 |
| Published date | 15 July 2009 |
| FIRST DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord President Lord Osborne Lord Marnoch | [2009] CSIH 63 XA3/08 OPINION OF THE COURT delivered by THE LORD PRESIDENT in Appeal from the Sheriffdom of South Strathclyde, Dumfries and Galloway at Hamilton in the cause JOHN KUSZ AND JOYCE ANN KUSZ Pursuers and Appellants; against MESSRS BUCHANAN BURTON Defenders and Respondents: _______ |
Act: Johnston, Q.C; Gillespie Macandrew, LLP (for Hutchesons, Solicitors, East Kilbride)
Alt: Murphy, Q.C.; HBM Sayers
15 July 2009
The circumstances
[1] In this action the pursuers seek reparation from the defenders, a firm of solicitors, one of whose partners, a Mr John Buchanan, acted for the pursuers from in or about April 1995. Prior to that date the pursuers had contracted with a Mr James Glen, a builder, for the construction of a dwellinghouse. They subsequently formed the view that the construction was in a number of respects defective. In this action they aver that, in the course of two meetings held at the defenders' premises in April 1995, they instructed Mr Buchanan to initiate legal proceedings against Mr Glen and to arrest and inhibit on the dependence. They aver that Mr Buchanan was made aware that the reason for seeking arrestment and inhibition was that Mr Glen intended to sell his dwellinghouse and relocate to Greece.
[2] As at April 1995 and for some months thereafter, Mr Glen was the sole proprietor of a dwellinghouse in Airdrie but on or about 26 July 1995 he conveyed that property to his wife. At the time of its conveyance it had a value, it is averred, of approximately £110,000. By that date no proceedings had been instituted against Mr Glen; nor consequentially was any inhibition in place. An initial writ was ultimately warranted at Airdrie Sheriff Court on 9 October 1996. Notice of Letters of Inhibition was thereafter registered and the inhibition itself registered on or about 11 February 1997. By these dates, it appears, Mr Glen was no longer the proprietor of any heritage in Scotland.
[3] The proceedings directed against Mr Glen were initially defended but ultimately decree by default was obtained against him on 17 May 2001 in the sum of £116,392.46. The pursuers aver that, despite having engaged agents who conducted various searches and enquiries, they have been unable to obtain satisfaction of that decree. The use of arrestments secured only the sum of £67.50.
[4] The defenders, while accepting that Mr Buchanan was instructed by the pursuers in or about April 1995 in connection with a claim against Mr Glen, deny that instructions were then given to raise proceedings against him or to use diligence on the dependence. They aver that the first pursuer on 13 June 1995 asked the defenders to start proceedings against Mr Glen and an architect who had also been involved in the construction project. They further aver that instructions to effect inhibition and arrestment were first given on 20 September 1996.
[5] The present action was commenced in Airdrie Sheriff Court on 14 May 2004. The defenders tabled a plea of prescription, contending that any obligation incumbent on them to make reparation to the pursuers had been extinguished.
[6] It is not in dispute that, on the pursuers' averments, the defenders' omission to take steps to have an inhibition in place before 26 July 1995 constituted an act, neglect or default by them; but the defenders contend that the obligation to make reparation became enforceable on or about 26 July 1995 and, the present action not having been commenced until 14 May 2004, the obligation has been extinguished in terms of section 6 of the Prescription and Limitation (Scotland) Act 1973. That contention proceeds on the basis that "the loss, injury or damage occurred" on that earlier date (section 11(1)).
The proceedings
[7] The case was first argued at debate before the sheriff who on 26 July 2007 repelled the defenders' plea of prescription and allowed to parties a proof before answer of their averments - presumably except in so far as directed to that plea. The defenders appealed to the sheriff principal who on 27 November 2007 allowed the appeal, recalled the sheriff's interlocutor of 26 July, sustained the defenders' plea of prescription and dismissed the action. [The defenders' plea based on prescription, as then formulated, sought that disposal.]
[8] The pursuers then appealed to this court. The case was first heard on 9 December 2008. At the end of the discussion the court made avizandum but, having given further consideration to the arguments, formed the view that the appeal could not satisfactorily be disposed of without first giving to the parties an opportunity to amend their pleadings. A minute of amendment was subsequently lodged on behalf of the defenders, followed by answers thereto by the pursuers. After adjustment, amendment was allowed in terms of the minute and answers (as adjusted) and the case put out for further argument. That was heard on 4 June 2009.
Submissions of parties
[9] Mr Johnston for the pursuers and appellants submitted that the issue was when there first was a concurrence of iniuria and damnum (Dunlop v McGowans 1980 S.C. (H.L.) 73, per Lord Keith of Kinkel at page 81). The pursuers contended that such concurrence had not occurred until at least 17 May 2001 when decree had been obtained against Mr Glen and the pursuers had been unable to obtain satisfaction of it. Until then there was no certainty that any loss had occurred as a result of the defenders' negligence. As at 26 July 1995 the loss was not certain but only potential. An inhibition was only a prohibitory diligence; it in no way operated as a transfer of the possession or property of the subject to the inhibitor (Graham Stewart, Diligence page 551). It was only effectual once decree was obtained (op.cit., page 553). Such a factual and legal circumstance was different from where, as a result of negligence, a property had become encumbered by a mortgage. Reference was made to Forster v Outred & Co [1982] 1 W.L.R. 86 and the interpretation of it in Law Society v Sephton [2006] 2 A.C. 543, especially per Lord Hoffmann at paras. 17-18 and Lord Mance at para. 70. Reference was also made to Osborne & Hunter Limited v Hardie Caldwell 1999 S.L.T. 153 and Jackson v Clydesdale Bank plc 2003 S.L.T. 273. The pursuers had suffered no measurable loss as at 26 July 1995. The sheriff principal had been in error in equiparating the present circumstances to those in Forster. The onus of averring and proving prescription rested on the defenders. Despite the opportunity given to them to amend, they had introduced no relevant or sufficiently specific averments in support of their plea. There were no averments by them as to Mr Glen's asset position (otherwise than his ownership of the house) as at 26 July 1995; nor as to his asset position in May 2001. There was a bald assertion, unsupported by relevant particulars, that the claim against Mr Glen had a value as at 26 July 1995 and would have had...
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