O.r. Humphries Partnership V. Ronald Russell
| Jurisdiction | Scotland |
| Judge | Sheriff Principal Sir Stephen S.T. Young |
| Court | Sheriff Court |
| Date | 27 May 2003 |
| Docket Number | A514/01 |
| Published date | 27 May 2003 |
SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN
A514/01
| JUDGEMENT of SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC | ||
| in the cause | ||
| O R HUMPHRIES PARTNERSHIP | ||
| Pursuers and Appellants | ||
| against | ||
| RONALD RUSSELL | ||
| Defender and Respondent |
Act: Mr A H Jones, solicitor, Russel & Aitken, Edinburgh
Alt: Mr K J MacDonald, solicitor, Paull & Williamsons, Aberdeen
Aberdeen: 27th May 2003
The Sheriff Principal, having resumed consideration of the cause, refuses the appeal and adheres to the interlocutor of the sheriff dated 10th December 2002 subject to the following amendments:
- In finding in fact 7 delete the last sentence and substitute: "The parties agreed that the pursuers would be paid 6% of the contract value. No building contract was entered into by the defender".
- Delete finding in fact 8.
- Delete finding in fact 9 and substitute: "The defender understood that the pursuers would charge 6% of the contract value. The defender did not consider what the pursuers would charge in the event of the project not proceeding to a conclusion, nor did Mr Oliver Humphries, and no agreement was reached between them on what the pursuers' fee would be in the event that no contract was placed by the defender for the completion of the proposed works".
- Delete the finding in fact and in law;
adheres also to the interlocutor of the sheriff dated 13th January 2003; finds the pursuers liable to the defender in the expenses of the appeal and allows an account thereof to be given in and remits the same to the auditor of court to tax and to report; quoad ultra remits to the sheriff to proceed as accords.
Note
- In this case the pursuers and appellants are a firm of architects. They sued the defender and respondent for payment of the sum of £10,649.02 in respect of professional fees said to be due by the defender in respect of a project to carry out alterations at his home at Bridge of Dee. It is not in dispute that the pursuers were instructed by the defender and proceeded to carry out certain work in connection with the project including preparing plans, applying for planning permission and a building warrant and obtaining tenders for the project from five separate contractors. The lowest tender was for £257,000 which was a good deal higher than the defender had originally envisaged spending on the project. He himself later received a proposal from other contractors to carry out the work at a cost of £185,000, but these contractors later withdrew after the pursuers had advised the defender against engaging them. The upshot was that the alterations were never carried out at the defender's home. On 17th August 2000 the pursuers rendered an invoice to the defender for the sum sued for, namely £10,649.02. At the proof before the sheriff the critical issue was whether or not the pursuers had proved that they were entitled to be paid this sum.
- As can be seen from their first plea-in-law (which is their only plea-in-law directed to the merits of the action), the pursuers claimed to be entitled to this sum in terms of a contract between them and the defender, and upon no other basis. In particular, they did not advance an alternative claim to payment on a quantum meruit basis (albeit that it appears clear from the evidence that it was at least partly on this basis rather than on the basis of what had been agreed that they actually prepared their invoice - see Mr Oliver Humphries at pages 45D, 73B and 82D and Mr Bennet Humphries at pages 142D and 153E). It appears that it was argued before the sheriff that, if he was not satisfied that the pursuers were entitled to payment in terms of their contract with the defender, then they should be found entitled to payment on this alternative basis. But this was rejected by the sheriff upon the ground that there was no foundation in the pursuers' pleadings for the alternative claim, and on appeal it was conceded that the sheriff had reached the correct decision in this respect. Thus at the end of the day the pursuers' case was perilled upon their having proved that they were entitled to payment of the sum sued for upon the basis of a contract between them and the defender.
- It was not in dispute that there was only one conversation between the parties in the course of which the fee to be paid to the pursuers was discussed. On record, the pursuers' account of what was said in the course of this conversation is to be found in article 2 of the condescendence where it is averred:-
- These averments were met by a general denial by the defender in his answer 3. Later on in the same answer he averred:
- In article 4 the pursuers went on to explain how they came to render their invoice to the defender. They averred:
On 29th October 1998 Oliver Humphries of the pursuers spoke to the defender regarding the pursuers' charges for the project. They discussed whether the project could be properly described as new work or alterations. Mr Humphries advised the defender that he was prepared to treat the project as new work and that a fee of 6% of the assumed contract value would be charged. Said charge is in accordance with R.I.B.A. fee scales. The defender indicated to Mr Humphries that he was happy with the pursuers' proposed fees. During the conversation, Mr Humphries and the defender were both aware that the defender wished to pay no more than £180,000 for the building works. Mr Humphries and the defender discussed R.I.B.A. fee scales. Mr Humphries made it clear to the defender that the pursuers intended to charge on the basis of R.I.B.A. fee scales subject to agreement on the precise percentage. It is the pursuers' normal business practice to charge on the basis of the R.I.B.A. fee scale and to render interim accounts at the completion of various work stages. The parties agreed that the pursuers would charge a fee of 6% of the assumed contract value together with V.A.T. and expenses for the work they would carry out in respect of the project. The agreed fee was less than the normal R.I.B.A. fee scale which is based on 8.3% or 12.3% of the contract value. The defender indicated to Mr Humphries that he was prepared to pay no more than £180,000 together with V.A.T. and expenses on the project. The pursuers' fee was quoted on the assumption that this would be the contract value.
In or around October 1998, a discussion took place between Mr Oliver Humphries of the pursuers and the defender in relation to the pursuers' proposed fees.
Mr Humphries told the defender that as it would be such a big project he would charge the defender 6% of the contract. The defender asked whether that sum included Value Added Tax and Mr Humphries said that it did not. The parties agreed that the pursuers would be paid 6% of the contract exclusive of V.A.T., plus the pursuers' expenses. The expression "contract" on the context of the parties' discussion meant that in the event that a contract was placed with a builder to carry out and complete alterations at the defender's property, the pursuers would be entitled to charge the defender 6% of the cost of the works, exclusive of V.A.T., together with their expenses. Said agreement requires to be interpreted in a way which a reasonable person would construe it. A reasonable person would construe the agreement as being an agreement to pay 6% of the cost of the works exclusive of V.A.T., together with expenses in the event a contract was entered into for said works. At this stage the defender had not received detailed costings for the alterations to enable him to decide whether any contract would be placed to carry out said alterations.
Having received no instructions from the defender to accept one of the other tenders, the pursuers rendered an account to the defender on 17 August 2000 for the sum of £8,100 together with expenses of £963 and V.A.T. of £1,586.02. The total sum due by the defender to the pursuers in terms of said invoice is £10,649.02. When...
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