P. & M. Sinclair v The Bamber Gray Partnership
| Jurisdiction | Scotland |
| Judgment Date | 08 May 1987 |
| Date | 08 May 1987 |
| Docket Number | No. 24. |
| Court | Court of Session (Outer House) |
OUTER HOUSE.
Lord Prosser.
Agent and principalPrincipal agent acting for disclosed but unidentified principalLiability of agent to third partyWhether third party relying on credit of agentWhether reliance to be inferred from absence of knowledge of principal's identityWhether issue of fact or law.
PracticePleadingsRelevancySummary decreeDefences failing to address issues but defender ready to adjust relevantlyWhether summary decree appropriateRules of Court 1965, r. 89B.1
PracticePleadingsRelevancySummary decreeIssue of lawWhether appropriate for determination on motion for summary decreeRules of Court 1965, r. 89B.1
A firm of builders entered into a building contract with a firm of architects. The firm of architects contracted as agents. The builders were not paid in full
for their work. They brought an action of payment against the architects. After the record closed they enrolled a motion for summary decree. The pursuers averred that the defenders had entered into the contract as agents for a disclosed but unidentified principal. On these facts it was their proposition of law that an agent for a disclosed but unidentified principal was liable on his contract. It followed that the only defence open would be that, as an issue of fact, the pursuers had had actual or constructive knowledge of the principal's identity. The pleadings did not contain averments to that effect, but the defenders expressed themselves ready to make such a case. The defenders argued that, in any event, the pursuers' proposition of law was wrong. They argued that an agent for a disclosed but unidentified principal was only liable if the third party relied on the agent's credit. Whether that was so was an issue of fact. To this, the pursuers responded that, where on the facts it was established that the third party had neither actual nor constructive knowledge of the principal's identity, it must be the case that he relied on the agent's credit. This was an inference of law and not an issue of fact. Therefore, the only material issue of fact was whether the pursuers had such actual or constructive knowledge. The defenders' pleadings did not address that issue and were accordingly irrelevant.
Held (1) that for summary decree to be granted there should be near-certainty as to the absence of any defence, and, even if the pursuers were correct in their account of the law, the defenders' readiness to argue the issue of...
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Henderson v 3052775 Nova Scotia Ltd
...the relevancy of the defences and grant decree de plano. But, as Lord Prosser recognised in P & M Sinclair v The Bamber Gray Partnership 1987 SC 203, 207, a motion for summary decree is not intended to replace a hearing on the procedure roll which is designed for the disposal of legal quest......
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Kenmore Homes (uk) Limited V. Charles Cumming
...me to Rankin v Reid 1987 SLT 352 (particularly at page 354B-C and page 354L to 355C), P. & M. Sinclair v The Bamber Gray Partnership 1987 SC 203 (at pages 204 and 206), Frimokar (UK) Ltd v Mobile Technical Plant (International) Ltd 1990 SLT 180 (at page 181K to 182C), Spink & Son Ltd v McCo......
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Its Drilling Services Limited V. Qualitank Services Limited
...which the pursuers had to overcome in order to satisfy the sheriff on this point. Thus in P & M Sinclair v The Bamber Gray Partnership 1987 SC 203 Lord Prosser spoke at page 206 of "the near certainty as to an absence of a defence which would justify granting summary decree". And in Mackays......
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Henderson v 3052775 Nova Scotia Ltd
...to: Keppie v Marshall Food Group (The) 1997 SLT 305 Nottay's Tr v Nottay 2001 SLT 769 Sinclair (P & M) v Bamber Gray Partnership (The)SC1987 SC 203; 1987 SLT 674 Three Rivers DC v Bank of England (No 3)ELRWLRUNK [2003] 2 AC 1; [2000] 2 WLR 1220; [2000] 3 All ER 1 At advising, on 18 February......