Scottish Court of Session Decisions

This was an action raised in the Sheriff Court of Edinburgh at the instance of Alexander Batchelor, general dealer, Rhonehouse, in the stewartry of Kirkcudbright, against William Mackersy, W.S., and George Handasyde Pattison, advocate. The conclusion of the summons was for a sum in name of damages sustained by the pursuer “through the wilfulness, maliciousness, gross negligence, systematic disregard of instructions, and ill-guided recklessness” of the defenders, the one as agent, the other employed by him as counsel, in their management of an action in the Court of Session.

The circumstances of that action, and the averments upon which the present action was based, were, so far as material, as follows. The pursuer's father Robert Batchelor, shoreporter, Dundee, had left a trust-disposition nominating trustees, and directing them on the death of his wife to sell his means and estate and divide the proceeds equally amongst his family, six in number. Robert Batchelor died in 1848, and his widow in 1855, at which date nothing had been heard of the pursuer, who had gone abroad for eight or ten years; and on the estate being realised it was distributed as directed. The pursuer's share was consigned in bank, but at a later date it was paid over to his surviving brothers and sisters in the belief that he was no longer alive. On his return home, eventually, he was unable to obtain it nor to make the trustees account for their intromissions, and he accordingly instructed Robert Broatch, writer, Dalbeattie, to get the necessary proceedings raised before the Court of Session for the purpose. The defender Mackersy was employed as Edinburgh agent, and three actions were raised, which were afterwards conjoined in the name of Francis Suttie, to whom the pursuer, for a consideration, had assigned his share of his father's estate. They were directed against the trustees and against Alexander Lindsay, into whose hands the truster's heritable property had passed on its being sold in 1855, as an individual. In the course of the proceedings, upon 7th February 1871, the sale of the heritable property was found, after proof before the Lord Ordinary, to be illegal, and Lindsay was ordained to lodge an account of his intromissions with the rents he had drawn from it since Whitsunday 1855.

In October 1871 the defender Pattison was first employed as counsel in the actions referred to, as the previous counsel, Mr Black, declined to continue to act, on the refusal by his client to listen to a compromise which he thought favourable. The pursuer averred (cond. 5) that it was at this time “that the wilfulness, maliciousness, gross negligence, systematic disregard of instructions, and ill-guided recklessness, in the management or conduct of said proceedings before the Court of Session, began, of one or more of which the defenders, or one or other of them, have been culpably guilty.”

The pursuer further averred (cond. 6)—“In carrying out said accounting, and with the view to the proper ascertainment of the pursuer's one-sixth share of his father's estate, the defender William Mackersy was instructed to get the heritable property sold by public roup, as directed by the trust-deed. Instead of obeying these instructions the defenders did, both of them, wilfully and recklessly consent to a remit to a protended man of skill to value and report upon the heritable subjects. Against this the pursuer remonstrated. Notwithstanding, the defenders lodged a minute craving such a remit, and by interlocutor of 23d January 1872 the Lord Ordinary made a remit accordingly. The defender George Handasyde Pattison was well aware of the instructions that had been given for a sale of the subjects. The pursuer's interests were prejudiced by this remit, and it would have been greatly to his profit had there been a sale instead of a remit.” It was admitted that Broatch was present before the reporter, and attended the inspection; the interlocutor making the remit was not reclaimed against, and there was no judicial repudiation of the defender Pattison's actings, nor was his mandate recalled.

Cond. 7 was as follows:— “After said remit had been made, and report obtained and lodged in process, the Lord Ordinary, by interlocutor of

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14th May 1872, allowed the report to be seen, and the parties to lodge a note of objections thereto within eight days. The pursuer being made aware of the terms of the report, and being greatly dissatisfied therewith, also with the conduct of the reporter and his incapability of executing such a remit— ascertained on a visit to Dundee— instructed the defender William Mackersy to lodge objections to the report, and crave a proof or a remit to another architect, if proof could not be got after the remit had once been made, so as to shew that the subjects had been undervalued to the extent of Two hundred and fifty-two pounds (£252) and the alleged meliorations and additions thereon overvalued to the extent of One hundred and twenty-one pounds (£121), all to the pursuer's loss to the extent of one-sixth of Three hundred and seventy-three pounds (£373), and the profit of the defender Alexander Lindsay in said action. But these instructions the defender William Mackersy wilfully, recklessly, and negligently disregarded, and lodged no objections. These instructions were repeatedly given. According to the opinion of an eminent, indeed the leading, architect in Dundee, from whom a report was also obtained and sent to the defender William Mackersy, the value of said heritable subjects in 1872 was £986, and that the cost of effecting the additions and meliorations at the time they were done would be £155, while the judicial reporter valued the subjects at £734, or £252 less than the other architect; and that the cost of the meliorations and additions would be £276, or £121 more than the other architect. In short, he reported that it took more to execute these meliorations and additions, which consisted only of an upper storey on one of the houses, than it would take to build the whole property originally. The report was glaringly absurd.”

Cond. 8 averred— “In accounting for the rents the said Alexander Lindsay debited himself with the amounts thereof, as appeared from the valuation roll of the burgh of Dundee, amounting from Whitsunday 1855 to £586, 19s. On inquiry at the tenants it was found that in almost every instance each tenant had paid much more than his rent was stated to be in the valuation roll. The defender William Mackersy was consequently instructed to get a proof or a remit to examine the tenants and Lindsay, and recover receipts and rentals, so as to ascertain the true amounts of the rents Lindsay had drawn. After considerable and unaccountable delay, a remit was made, but only to recover receipts and rentals, not to examine the tenants. The pursuer remonstrated against such a limited remit, and again instructed that the remit should be extended to an examination. The other defender G. H. Pattison was made aware of this instruction, but would not, or at least did not, obey it— this most negligently and wilfully, recklessly, and by crassa negligentia and unskilfulness.”

In condescendence 9 it was stated that on the remit being executed it was found that many of the tenants had no receipts, and that the rentals recovered were of a very confused nature, and the pursuer again gave instructions to get a remit, which were disregarded. A report was got upon these receipts and rentals from Messrs Robertson, accountants in Edinburgh, stating that the excess of rents truly drawn by Lindsay over those given up in the valuation roll amounted, exclusive of interest, to £392, 10s. 5d. The defender Mackersy communicated the terms of this report to the pursuer, who, it was averred (cond. 11) “instructed him to get a judicial remit to an accountant to report a state of accounts between the parties to the Court. This, also, the defender William Mackersy wilfully, recklessly, culpably, and negligently failed to do, and did not do. The instructions to get this done were given to the said William Mackersy repeatedly by letter, as indeed all instructions were given by letters.” Further (cond. 12) “Instead of getting a remit to an accountant in conformity with said instructions, the said William Mackersy, by misrepresentations … prevailed on the said Robert Broatch to consent to the amount of rents accountable for by Lindsay being adjusted by counsel. Mr Broatch, without any authority from his client, gave such consent, but in doing so stated that he had ‘no authority to grant such a letter, and I grant it with great reluctance. It depends entirely on what Mr Pattison does whether the authority will be acquiesced in. If he proceeds on such a footing as not to meet with my client's refusal, my client will repudiate the authority, and engage the services of other agents and counsel.’ After complaining that other things had been done in the cause contrary to express instructions, the letter of authority proceeds—‘the result of Mr Pattison's adjustment is to be submitted to me before anything be done on it. That I condition in granting the authority.’ The terms of this authority were duly communicated to the defender G. H. Pattison. The pursuer was not aware that any such authority had been asked or given, and did not authorise it to be given. That authority, however, such as it was, was afterwards recalled, and instructions renewed to get a remit to an accountant as above stated.”

The authority to adjust the rents was then withdrawn, notwithstanding which it was alleged by the pursuer that the defender Pattison concurred in a joint minute, whereby the present pursuer stated his interests wers sacrificed to a large extent. With reference to this minute, the pursuer averred that “the said William Mackersy was instructed, and undertook to get said minute withdrawn from process, and he was put in funds to fee counsel for that purpose; but he wilfully failed to attend to this instruction, and did not even try to get the minute withdrawn, but allowed a remit to be made to an accountant to report a state of accounts in terms of the said joint minute. The said G. H. Pattison was also written to on the subject, but he neither explained his conduct nor tried to get the minute withdrawn The pursuer explains that at a meeting in Edinburgh between him, his agent Mr Broatch, and the defender Mackersy, on 6th May 1873, that defender undertook to get the minute withdrawn from process and engage another counsel on being supplied with funds for that purpose. Money was sent for that purpose, but the defender Mackersy, instead of obeying these instructions, or notwithstanding the repudiation of the minute on 17th May 1873, procured a remit to Mr Jamieson, C.A., Edinburgh, to report a state of accounts in terms of said minute. The pursuer Mr Suttie, and Mr Broatch, were in entire ignorance of this remit of

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17th May 1873 till after it was pronounced. Thereafter the defender Mackersy's agency was recalled, intimations made to Mr Jamieson and Lindsay's agent that the minute was repudiated, and objections lodged with Mr Jamieson to him proceeding under the remit, which, with the productions therewith, are referred to, and an effort made to get another agent to act; but the pursuer was told that the only redress he had was against the defenders for damages for the great loss he had sustained, as the Court would not go back on what had been done by them in Suttie's name, and he was advised to let things go on to an end and then raise proceedings against the defenders for damages.”

In 1873 Mr Suttie granted the present pursuer a retrocession of the share in the estate which had been assigned to him, and he was sisted as a party pursuer with Suttie. Decree was afterwards taken for both pursuers for the balance which had been reported as due.

The Sheriff-Substitute ( Hallard) pronounced the following interlocutor:—

“ Edinburgh, 18th June 1875— The Sheriff-Sub-stitute having again considered the closed record and productions, after hearing the pursuer and counsel for the two defenders thereon, Finds that the pursuer's allegations are irrelevant and insufficient to support the conclusions of the action: Therefore dismisses it and decerns: Finds the defenders entitled to expenses, of which allows an account to be given in, and remits the same when lodged to Mr Robert Barclay Selby, solicitor, or to the Clerk of Court, to tax and report.

Note.— This is an action of damages against a counsel and a solicitor for mismanagement of a cause. Instances of such proceedings against law-agents are to be found in the books, but none have been cited in which a counsel appears as defender. In England there is only the noted case of Swinfen v. Lord Chelmsford, 5 Hurlstone and Norman, 890, to which reference will be made in the sequel.

The pursuer pleaded his case in person, not having been able, as it would seem, to find any one willing to incur the peril of being his legal adviser. It is to be hoped that he will not on that account suppose that the legal value of any statement he has made, and of any plea he has urged, has been overlooked. The record containing these statements and pleas is full of detail. From this mass it is possible to deduce a brief outline sufficient to explain the plea for the defence which has been sustained by the foregoing interlocutor. The pursuer is one of six children. His father died in 1848, leaving in trust property chiefly consisting of heritage, and a widow, who was provided for by a liferent. At her death in 1855 the trust-property became open for division among the six beneficiaries. It was sold, and in that manner came into the hands of a Mr Lindsay, one of the assumed trustees. This took place during the pursuer's absence from this country. On his return he challenged what had been done. His father's trustees, and specially Lindsay, as the illegal acquirer of property forming part— the chief part— of the trust, were made defenders in three actions instituted against them in the Court of Session in July 1869, January and April 1870.

These actions were ultimately conjoined, and came to depend before Lord Ormidale.

Here this narrative may be interrupted to explain that these proceedings were not begun in the pursuer's own name. For some reason which does not appear he had in April 1869 assigned to some one else his right to challenge the doings of the trustees, and call them to account for their intromission. His assignee was a person named Suttie, in whose name the conjoined actions were raised and carried on. In August 1873 Suttie granted a retrocession to the pursuer, in which the present proceedings seem to have been indicated by anticipation. The pursuer is thereby empowered not only to prosecute the pending suits to a termination, but also to get annulled ‘what has been done in my (Suttie's) name, but without any authority in the conduct of said action,’ &c. The assignation and retrocession are in process. The Sheriff-Substitute construes them as having the effect of placing the present pursuer in the same position as if the three conjoined actions in the Court of Session had been carried through in his name from beginning to end. There is not, it is true, any special assignment by Suttie of any claim of damage in respect of the defenders’ actings as counsel and agent in these three suits. It is thought, however, that such a claim, if it existed, would pass a pertinent or accessory of the right actually conveyed. The Sheriff-Substitute would therefore have been disposed to repel the defenders’ plea against the pursuer's title to sue. No such judgment has been pronounced, because it would do the pursuer no good, as on relevancy the Sheriff-Substitute's opinion is against him. In what remains to be said it will be assumed that the present pursuer, Batchelor, was the pursuer from beginning to end of the three suits which he accuses the defenders of mismanaging.

In these suits the leading feature was the voiding of the illegal purchase by Lindsay, and the consequent accounting by him for the fruits of the property while it remained in his possession. He had to restore the rents received; but he made on the other side certain claims for improvements. It may briefly be said that the whole gist of the pursuer's complaint is that Lindsay was allowed too favourable terms. He was debited with too small a sum in name of rents, and credited with too large a sum in name of meliorations. There was a remit to an architect to ascertain the value of the property, and to an accountant to ascertain the money due. It is in their conduct of these matters that the defenders are said to have sacrificed their client's interests.

From beginning to end of the Court of Session proceedings the pursuer and his country agent, Mr Broatch, were closely watching them, even while Suttie's name appeared as pursuer. It was not mere passive watching, but active and frequent interference. Mr Black, at one time pursuer's counsel, seems not unnaturally to have grown impatient under this state of things, and to have made way for the defender Mr Pattison. Indeed, considering how close this watching, and how continuous this interference must have been, according to the pursuer's own account of the matter, the wonder is that Mr Pattison did not speedily follow the example of Mr Black. He

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did not do so. He remained the pursuer's counsel to the end of the suit, the pursuer being fully aware of all that was done. This fact alone seems sufficient to dispose of the present cause. If the pursuer was not pleased with his counsel the remedy was in his own hands.

Take, however, some of the specific charges made against Mr Pattison. He did not adopt the valuation of Messrs Robertson. He did not take their figure of £392, 10s. 5d. as truly representing the excess of rents above the valuation roll for which Lindsay was liable. He appears to have thought that this figure, which the pursuer now insists upon as accurate, proceeded on conjectural grounds. Can it be contended that in so doing he exceeded the discretion entrusted to him in the conduct of the cause? Again, there is the matter of the minute referred to in articles 13 and 14 of the pursuer's condescendence— a minute adjusted between Mr Pattison and the opposite counsel, Mr Asher. Is it doubtful that here again, so long as Mr Pattison was allowed to remain in the position of counsel in the cause, he was entitled to exercise his judgment as to what was best for his client's interest? If in doing so, and quite obviously with no purpose of his own to serve (for none is even hinted at) he was to incur any such liability as is here pressed against him, the honourable practice of an advocate's calling would become full of peril.

Indeed, the whole case, as made on the record against both defenders, comes to this— that they refused to allow the pursuer to manage or mismanage the case in his own way, under the sanction of their names as his professional advisers. No doubt he heaps upon their conduct such words as wilfulness, malice, gross negligence, and ill-guided recklessness. But these big words do not touch the essential character of the proceedings themselves as averred and admitted on the record.

Another illustration of implicit obedience to orders which the pursuer expected from his counsel and agent, under penalty of an action of damages, will be found in article 8 of his condescendence. He insisted on their obtaining proof by parole in a matter which obviously could only be proved by writing, viz., the payments of rent by the tenants of the property. One sees the force in this connection of Lord Mackenzie's observation in Burness v. Morris, July 7, 1849— ‘It is not the usual practice of the bar to state every objection which the client suggests, and I do not think it would be any improvement that they should do so.’

Such being the nature of the case as stated against the defenders, the judgment in the well-known case of Swinfen applies a fortiori. Nothing so strong was done here as in that case. But it was there unanimously ruled by the English Court of Exchequer that ‘no action lies against a counsel who, being employed to conduct a cause at nisi prius, enters into a compromise and withdraws a juror, even though contrary to his client's instructions, provided it is done bona fide. ’ The Sheriff-Substitute will not lengthen this too long note by making any quotation from the judgment as delivered by Chief Baron Pollock.

Very few words indeed are needed to dispose of the case as against the agent. From the beginning to the end of the proceedings in question, Mr Mackersy, on the pursuer's own shewing, acted under the guidance of Mr Pattison. Indeed, the gravamen of the charge against him is, that he preferred that guidance to the pursuer's express instructions. That in so doing he did wisely in the pursuer's own interest is highly probable. But it is too clear for argument that in such circumstances if there be no case against the counsel there can be none against the agent.”

This interlocutor was adhered to by the Sheriff ( Davidson) on appeal.

The pursuer appealed to the First Division of the Court of Session.

Authorities quoted— Gilfillan v. Brown, March 8, 1833, 11 S. 548; Currie v. Glen, December 19, 1846, 9 D. 308; Swinfen v. Chelmsford, 5 Hurlstone and Norman, 890, and 29 L. J., Excheq. 382; Megget v. Thomson, February 2, 1827, 5 S. 275; Landale v. Tod, January 10, 1831, 9 S. 268; Cates v. Indermaur, 1858, 1 Foster and Finlason, 259.

At advising—