Stewart Wells Hill And Robert Thomson Hill Against Stewart Milne Group Limited And Gladedale (northern) Limited (formerly Bett Limited)
| Jurisdiction | Scotland |
| Judge | Lady Clark Of Calton,Lady Smith,Lord Brodie |
| Judgment Date | 29 July 2016 |
| Neutral Citation | [2016] CSIH 65 |
| Date | 29 July 2016 |
| Published date | 29 July 2016 |
| Court | Court of Session |
| Docket Number | XA76/15 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2016] CSIH 65
XA76/15
Lady Smith
Lord Brodie
Lady Clark of Calton
OPINION OF THE COURT
delivered by LADY SMITH
in the cause
STEWART WELLS HILL and ROBERT THOMSON HILL
Pursuers and Respondents;
against
STEWART MILNE GROUP LIMITED
First Defender and Appellant;
GLADEDALE (NORTHERN) LIMITED (formerly BETT LIMITED)
Second Defender and Appellant:
Pursuers and Respondents: Bowen QC; Balfour & Mansons, Solicitors, Edinburgh
Defenders and Appellants: McIlvride QC; Morton Fraser LLP, Solicitors, Edinburgh
29 July 2016
[1] The appellants were successful in their appeal from the decision of the sheriff for the reasons explained in the court’s opinions of 13 May 2016. We refer to those opinions for a full explanation of the background, the factual and the legal issues that arose in this litigation and were, ultimately, determined in the appellants’ favour.
[2] On 12 July 2016, we granted the appellants’ motions (i) to find the respondents liable in the expenses of the appeal and of the action in the sheriff court, (ii) to certify John Duncan of URS Scott Wilson as a skilled witness, and (iii) to certify the action in the sheriff court as suitable for the employment of junior counsel.
[3] The appellants also sought an additional fee, having regard to the factors specified in parts (b), (e) and (f) of rule 42.14(3) of the Rules of the Court of Session. That motion was opposed. We heard submissions and made avizandum.
Specialised knowledge, time and labour required of the solicitor
[4] Senior counsel for the appellants submitted that the two principal issues - the proper construction of a commercial contract and whether the appellants had in fact achieved completion and commissioning of the drainage and sewage systems at the residential development sites – both required specialised knowledge of the circumstances in which Scottish Water allowed connection of such systems to public mains, agreed to accept vesting of privately constructed systems and made payments to reimburse costs incurred in their construction. These were unusual features. They were not matters which solicitors regularly encounter and investigations were required including the identification of and seeking advice from an appropriate expert. Considerable time and labour had been expended in obtaining and marshalling the relevant evidence including matters such as the dates that the numerous houses were accepted by the local authority as fit for occupation, the dates of their actual occupation, the dates of requests to Scottish Water for reimbursement of costs and the dates on which payments were made. The amount of information gathered regarding these matters was not adequately reflected in the sheriff’s note or not reflected at all. An indication of the skill, time and labour involved could be gleaned from a consideration of the Appendix.
[5] Senior counsel for the respondents submitted that nothing raised in the appeal went beyond the routine construction of a commercial contract. Whilst he accepted that that required to be carried out against a background of the relevant factual context, there would have to be something out of the ordinary to warrant an additional fee. There was nothing extraordinary in this case and no indication of unusual effort being required of the solicitor.
[6] For the reasons advanced by senior counsel for the appellants, we are satisfied that the subject matter was unusual, required the acquisition of specialised knowledge and understanding of both a technical and legal nature, we accept that it must have demanded more than a routine level of skill, time and labour on the part of the solicitor and that an additional fee is, in all the circumstances, accordingly warranted.
Importance of the cause or subject matter to the client
[7] Senior counsel for the appellants submitted that although the contract was a “bespoke” one and its construction would not, of itself, have wide ranging consequences, there was potential for wide ranging significance to the appellants. They were house builders and may have to enter into similar contracts in the future.
[8] The respondents resisted the suggestion that the decision could be of any general importance to the appellants. The case required the construction of an unusually worded bespoke contract and concerned nothing that would be of general application. It was not a test case for other contracts or of any other evident special importance.
[9] For the reasons advanced by senior counsel for the respondents, we are not satisfied that an additional fee is warranted on the basis of importance of the cause or subject matter to the appellants.
The amount of money involved in the case
[10] Senior counsel for the appellants referred to: the sheriff having granted decree for £345,000; the sum that would have been due by 13 May 2016 if the sheriff’s construction of the contract had been correct being £454,000; the risk of the appellants being subject to a possibly open ended ongoing liability of £5000 per month. These sums were such, he submitted, as to justify an additional fee under this head.
[11] Senior counsel for the respondents submitted that the sums involved were not high as compared to other construction related disputes. Further, the appellants could have terminated the monthly payments through their own hand by carrying out snagging works so that the systems could be adopted, thereby achieving what the respondents contended was the required state of completion.
[12] Whilst we accept that other construction related disputes can involve far greater sums, we are persuaded, on...
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