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A Strange Notice

Document Cited authorities 3 Cited in Related
Vincent
AuthorRoss Gilbert Anderson
Pages484-487
DOI10.3366/E1364980909000614
Date01 June 2009
Published date01 June 2009

In Christie Owen and Davies plc, t/a Christie & Co v Campbell1

[2009] CSIH 26, 2009 SLT 518. The opinion of the court was delivered by Lord Clarke. For discussion of proceedings before the sheriff and the sheriff principal, see R G Anderson, “Intimation 1862–2008” (2008) 12 EdinLR 275.

the pursuers entered into a “sole-selling rights agreement” with Campbell, in terms of which the pursuers agreed to market Campbell's leasehold interest in licensed premises. The pursuers did so, finding a buyer willing to pay £46,000 for an assignation of the lease. As a result of the transaction, the pursuers became entitled to payment of a commission of £7,966 plus VAT. Tucked away in the agreement was a clause which ran

…I/we hereby authorise the vendor's solicitors … to pay out of money received by such solicitors, the fees requested by [the pursuers].

Campbell's solicitors were the second defenders and the contradictors to the action. The solicitors had acted for Campbell in the assignation of the lease and it was the solicitors who held the funds following the assignation of Campbell's lease. Following the settlement of the lease transaction, the pursuers sent a letter to the solicitors enclosing their fee note. The letter stated, “We look forward to receiving payment in early course. We look forward to hearing from you in due course”.2

Para 5.

 The pursuers were not paid. The report does not disclose any commercial reason why the solicitors refused to pay. The only reason argued was that, although the clause in the agreement was capable of being an assignation,3

Whether such payment instructions should be construed as assignations rather than mandates is controversial. See Anderson (n 1) at 276 n 7.

 there had been no proper intimation of the assignation. But there is no indication in any of the opinions that the solicitors had paid away the moneys they admittedly held or that they had received a competing claim to payment and were thus in double-distress. The solicitors even conceded before the court that if the documents had been read when they were received then they would have been “left in no real doubt that the appellants fell to be paid the sum in question”.4

A concession highlighted by the Division: para 11.

 And, in any event, providing no other interests intervene between intimation and the raising of the action, the production of the assignation in process amounts to judicial intimation,5

See R G Anderson, Assignation (2008) paras 7–16 ff; Anderson (n 1) 279...

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