Scottish Court of Session Decisions

At the Procedure Roll in this matter the defender argued for dismissal on the ground that the pursuer's averments supporting a contention that the parties had entered into a contractual relationship of commercial agent and principal, were insufficiently specific to be allowed to go to enquiry. He also argued that the averments relating to the termination of any such agreement were confused and inspecific. In relation to the quantification of the claim, he attacked the averments relating to, in general terms, the pursuer's losses, in relation to Regulations 7, 8 or 17 of the Commercial Agents (Council Directive) Regulations 1993.

Both counsel presented written summaries of their arguments, which was very helpful for the court. A substantial proportion of the debate was concerned with the interpretation of the said Regulations and in particular Regulation 17 which, it was contended by the defender, should be interpreted having regard to the English words there and that accordingly damages fell to be construed as those which a Scottish court would determine. The pursuer contended that the Regulations were such as to require a reference to the European Court of Justice, particularly in relation to the meaning of "damages" in Regulation 17. His contentions in that regard was set out in the pleadings and he proposed to urge the court to follow the manner in which a French court would assess such damages.

While I am by no means persuaded that the French model is one which would, or indeed should, be followed at the European court, it is plain from the context as a whole that the Regulations do mean something more than the damages which would have been awarded under the common law of Scotland on the termination of a contract of agency. However, reference to the European court cannot be made unless and until there is a specific factual situation upon which the court can base its considerations.

The factual situation in dispute in the present case was whether or not there was a relationship of commercial agent and principal between the parties and, if so, whether and how it was terminated. In these circumstances, and because of the limited value of the claim, I intimated that I would be making an order in terms of Rule 36(1) to split the proof, if I were satisfied that the case could go to proof before answer. Having so intimated, counsel were able to agree a formulation for the interlocutor allowing the limited proof.

I intimated that I considered that although the pursuer's averments are not noted for their elegance and were to some extent factually difficult to follow, I could not take the drastic course of dismissing the case on the basis that there were no relevant averments of the contractual relationship between the parties or of its termination. Accordingly a proof before answer on that matter was allowed.

It will be for the parties at the conclusion of such a proof to progress the matter of quantification of damage and should the pursuer succeed, the question of a reference to the European court may require to be considered, but it is premature to consider making such a reference.