Primary Health Care Centres (broadford) Limited V. Dr Alan William Humphrey+prabhuling Ravangave+sheila Anne Turville
| Jurisdiction | Scotland |
| Judge | Lord Hodge |
| Neutral Citation | [2011] CSOH 92 |
| Court | Court of Session |
| Published date | 31 May 2011 |
| Year | 2011 |
| Date | 31 May 2011 |
| Docket Number | CA21/08 |
| OUTER HOUSE, COURT OF SESSION [2011] CSOH 92 | |
| CA21/08 | OPINION OF LORD HODGE in the cause PRIMARY HEALTH CARE CENTRES (BROADFORD) LTD Pursuer; against DR ALAN WILLIAM HUMPHREY Defender; PRABHULING RAVANGAVE First Third Party; and SHEILA ANNE TURVILLE Second Third Party: ________________ |
Pursuer: C. MacNeill QC; Shepherd & Wedderburn LLP
Defender: Macdonald Solicitor Advocate; Bell & Scott
Second Third Party: Beynon; Balfour + Manson LLP
31 May 2011
[1] The pursuer ("PHC") initially raised this action against the three former partners of a dissolved medical partnership seeking a declarator that they were jointly and severally liable for all of the obligations of the former partnership as tenants under a lease of heritable subjects in Broadford, Isle of Skye, known as the Broadford Medical Centre.
[2] This action followed an earlier action in which PHC sought a similar declarator against only Dr Ravangave and Dr Turville, who brought Dr Humphrey into the proceedings as a third party. In that action Lord Glennie pronounced decree of absolvitor in the circumstances which I set out in my first opinion in the current action ([2009] CSOH 46). In that opinion I upheld the pleas of res judicata advanced on behalf of Dr Ravangave and Dr Turville. Thereafter, on 27 May 2009 I awarded them the expenses of the action except in so far as already dealt with and remitted their accounts of expenses to the Auditor to tax.
[3] It soon became clear both that PHC, notwithstanding that reverse, intended to establish that one of the former partners remained responsible for all of the obligations of the dissolved partnership and that the former partners were not in agreement as to their liability inter se to contribute to discharge those obligations. In June 2009 PHC amended its pleadings to seek declarator against Dr Humphrey alone. Dr Turville was represented at the By Order hearings in June and August 2009 before she was formally brought back into the action as a third party as it was apparent that the sustaining of the plea of res judicata had not concluded the dispute between the former partners. In September 2009 Dr Humphrey brought Dr Ravangave and Dr Turville back into the action as third parties on the basis that if he were liable, as PHC asserted, for one hundred per cent of the tenant's obligations, he would be entitled to pro rata relief from them. After a debate, in an opinion dated 16 September 2010 ([2010] CSOH 129) I dismissed Dr Humphrey's claims against the third parties. I also allowed PHC to amend its pleadings to seek a declarator that Dr Humphrey was liable for only one-third of the tenant's pecuniary obligations under the lease. On 1 October 2010 I pronounced a declarator to that effect and, among other things, found PHC and Dr Humphrey jointly and severally liable to the third parties in the expenses of the cause with PHC liable for two-thirds and Dr Humphrey liable for one-third of those expenses inter se.
[4] In accordance with the interlocutor of 1 October 2010 Dr Turville has sought to have her account of expenses taxed. Her legal representatives intimated and lodged an account for expenses on 28 January 2011. PHC has objected to her doing so, arguing that she is barred by delay from seeking to recover her expenses awarded up to 27 May 2009.
[5] Rule of Court 42.1(2) provides that:
"Any party found entitled to expenses shall -
(a) lodge an account of expenses in process not later than 4 months after the final interlocutor in which a finding in respect of expenses is made;
(b) if he has failed to comply with sub-paragraph (a), lodge such account
at any time with leave of the court but subject to such conditions (if
any) as the court thinks fit to impose; and
(b) on lodging an account under sub paragraph (a) or (b), intimate a copy of it forthwith to the party found liable to pay those expenses."
[6] Mr MacNeill for PHC submitted that the upholding of the plea of res judicata, which Dr Ravangave and Dr Turville had proponed, constituted the completion of a separate cause in which a "final interlocutor" in respect of expenses was issued on 27 May 2009. The subsequent cause related to the extent of Dr Humphrey's liability to PHC for the tenant's obligations and to the question whether he had a right of relief against his former partners in respect of that liability....
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