Ross Reilly Against Lee Brodie
| Jurisdiction | Scotland |
| Judge | Sheriff T Welsh QC |
| Neutral Citation | [2016] SC EDIN 36 |
| Court | Sheriff Court |
| Date | 03 May 2016 |
| Docket Number | A565/14 |
| Published date | 06 May 2016 |
SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH
[2016] SC EDIN 36
A565/14
JUDGMENT OF SHERIFF T WELSH QC
In the cause
ROSS REILLY
Pursuer;
Against
LEE BRODIE
Defender:
Act: Thorley, Thorley Stephenson, Edinburgh
Alt: Grant, Young & Partners LLP, Dunfermline
At Edinburgh, on 3 May 2016, the sheriff having resumed consideration of the cause, sustains the second and third pleas in law for the defender; dismisses the action; assoilzies the defender from the craves of the writ and finds the pursuer liable to the defender in the expenses of the action; thereafter allows an account of expenses to be given in and remits the same to the auditor of court to tax and report; and thereafter, discerns.
Note The Issue[1] On 22 March I heard a debate in this case. The pursuer sues the defender for payment of £15,000 with interest said to be due following the sale of his fishery business, Selmuir Fly Fisheries, to the defender. It is averred that the sale was concluded between September and November 2012 but the defender never paid the agreed purchase price. The defender does not dispute that negotiations between the parties reached an advanced stage but avers a bargain was never concluded. The debate was based on the defender’s second and third pleas in law which state that the pursuer’s case is irrelevant, lacks specification and separately that as no contract is relevantly averred between the parties, the defender should be assoilzied from the craves of the writ. The pursuer contests the merit of these pleas and offered a proof before answer at a continued options hearing on 6 August 2015. However, Mr Thorley, for the pursuer, argued the case should now be remitted for proof on the basis that his averments provide sufficient specification of the pursuer’s case and a relevant contract of sale has been averred, to warrant proof of the facts averred.
Adjournment and Minute of Amendment
[2] At the outset, Mr Thorley made a motion to adjourn the debate and for leave to lodge a further minute of amendment. A diet of debate was previously discharged on 1 October 2015 because of a late amendment. The new minute, it was said, would lay a basis for proof of certain photographs of the fishery site in dispute and provide details about a website which is said to be associated with the fishery business. Ms Grant, for the defender, opposed the application and indicated that if the minute was allowed she would need an adjournment to make inquiries about the website, although she indicated the photographs were of a different fishery from the one in dispute. She would require more time to make investigations and answer any proposed minute of amendment. I was not prepared to lose another diet of debate and refused the pursuer leave to amend at this late stage.
The Pleadings
[3] The amended closed record avers, in its material aspects, that the pursuer operated a business ‘Selmuir Fly Fisheries’ from a leased site in Livingston. The pursuer, it is said borrowed £15,000 from the Royal Bank of Scotland, to develop the business. The money was used ‘to set up the business, obtain the stock, take on the lease and in addition obtain the equipment necessary to run a fishery.’ The pursuer had a business partner, Gary Christie, but he left the business at a time unspecified. However in or about 2011 it is averred the pursuer opened negotiations with the defender about becoming a partner in his business. It is said the defender ran a fishing tackle shop in Livingston and the negotiations took place at that tackle shop and at the fishery site itself. The writ avers the defender wanted to buy out the pursuer and operate the business himself. The averments contend that the defender agreed to pay the sum of £15000 to the pursuer ‘in order to take over the business’. The writ states, ‘The business consisted of the lease of the fishery, the stock and the equipment’. It is then stated that a series of texts were exchanged between the parties between 28 September 2012 and 30 November 2012 which are incorporated into the writ. It is said the text messages confirm that the defender ‘wished to arrange a lease transfer and to make a payment of £15000’. The writ continues that solicitors were instructed to prepare ‘the necessary paperwork which was never signed’. It is then averred that the defender ‘took over the business which incorporated the Fishery together with the stock together with all the equipment.’ The writ further avers ‘The contract was concluded in accordance with the said text message on or about 1 October 2012 at the point when the defender by text confirmed that he instructed his lawyers to draw up a payment agreement or £15,000 which should be ready on 1 October 2012. The defender had taken over the business on 1 October 2012 and was due to make payment at that time and payment was to be made, in accordance with the text messages repeated herein brevitatis causa, by 4 October 2012’ . The record then discloses in answer to the defender’s averments that the pursuer leased the site from a company called Potter Construction. No further specification is given about the lessor or the terms on which the land was occupied and used.
[4] The defender avers in so far as relevant to the debate that it is admitted the defender opened a tackle shop in Livingston and that discussions took place between the pursuer and defender. The defender avers that ‘the parties discussed the possibility of the defender buying the business of the fishery.’ It is averred that, after discussions, the defender concluded that the fishery was not a viable business and it is denied there was a concluded agreement that the defender would take over the business. The defender avers he never paid the £15,000 because there was no legal obligation so to do. The defender admits that the ‘paperwork’ was never signed.
Submissions.
Defender
[5] Ms Grant for the defender opened the debate and explained the procedural history of the case. She then indicated that she would present two arguments, which in her submission, justify dismissal of this claim:
- The record contains insufficient specification of the nature and extent of the legal basis of the defender’s case, particularly with regard to the lease of the fishery, to put the pursuer on notice of the legal case advanced. She also indicated as part of this sufficiency argument that the record contained contradictory averments regarding when contractual agreement was reached and whether a written agreement was required.
- In terms of the defender’s third plea, Ms Grant argued the pursuer’s averments are irrelevant as they do not aver a concluded contract with reference to general principle.
[6] In developing her case Ms Grant stated it is not disputed that the alleged contract for sale included the transfer of a lease of fishery. However, she said, the lease itself is not produced by the pursuer. The pursuer’s pleadings suggest a written contract was required in order to effect the lease transfer but they fail to specify the nature of the lease, the extent of rights the defender was to obtain, how this was to be transferred (e.g. was the landlord’s consent obtained) or whether the lease was actually transferred in some way from the pursuer to defender at some point. Accordingly, she said, the defender is unable to ascertain whether the pursuer’s case is that a written contract was required to effect lease transfer and if not, why not. Ms Grant referred to a number of authorities relating to fair notice. These included: Chapter 9 of MacPhail Sheriff Court Practice; Esso Petroleum Co v Southport Corp [1956] A.C. 218; Lord Advocate v Johnston 1985 SLT 533; Morrison’sAssociatedCo’s Ltd v James Rome & Sons Ltd 1964 SC 160; Ward v Coltness Iron Co 1944 SC 318. With regard to the argument directed at what Ms Grant called the pursuer’s contradictory averments she drew my attention to apparent contradictions ex facie of the record in relation to the requirement of writing to constitute the agreement viz, at line 3 on page 3 the pursuer avers “Solicitors were instructed to prepare the necessary paperwork which was never signed.” However, Ms Grant argued, the averments introduced by the most recent amendment state “The contract was concluded in accordance with the said text message on or about 1 October 2012 at the point when the defender by text confirmed that he instructed his lawyers to draw up a payment agreement …” Then the final sentence in Article 3 states “Paperwork was drawn up but never signed.” Ms Grant indicated it was not clear upon what legal basis the case was brought and she then referred to MacPhail, op cit, para 9.37; McSourley v Paisley Magistrates (1902) 10 SLT 86; Stanley Limited v Hanway 1911 SLT 2.
[7] Turning to her third plea in law, Ms Grant argued that even if the averments on record are proved they do not disclose a concluded contract between the parties. As I understood this argument Ms Grant argued that the nature of the contract was at least uncertain and hence void [May & Butcher Ltd v The King 1934 2K.B. 17; Avintair Ltd v Ryder Airline Services Ltd 1994 S.C. 270; N & J MacFarlane (Developments) Ltd v MacSween’s Trustees 1995 S.L.T. 619; Courtney & Fairbairn Ltd v Tolaini Brothers (Hotels) Ltd. & Another 1975 W.L.R 297]. However, even if there was consensus the contract averred contained a suspensive condition which provides that the agreement depended upon a written lease being executed and exchanged between the parties. It is not disputed this never occurred. Therefore the contract is either void from uncertainty or unenforceable because the suspensive condition was never fulfilled. Reference was made to Requirements of Writing (Scotland) Act 1995 s1; Van Laun & Co v Neilson Reid & Co (1904) 6 F 644; Gordon’s Executors v Gordon 1918 1 S.L.T. 407; WS Karoulias SA v The Drambuie Liqueur Co Ltd 2005 S.L.T 813.
Pursuer[8] Mr Thorley informed me this is a case of specific...
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