Scottish Court of Session Decisions

Having heard parties in debate I concluded in my opinion dated 28 September 1999 that on the basis of the existing pleadings I would for the reasons there given have dismissed this action as irrelevant. I, however, deferred making a substantive order until the pursuers had had an opportunity of considering whether they could propose an amendment capable of curing the difficulties identified.

Since the issue of that opinion the pursuers have obtained access to certain documents including minutes of meetings of the defender's Home and Property Services Committee held in February and in April 1998. They have also obtained access to reports laid before those meetings. These and other documents have been lodged. The pursuers have prepared a minute of amendment seeking to introduce matters arising from those documents and certain other new matters. Mr Brailsford for the pursuers moved me to allow the minute of amendment to be received with time being allowed to the defender to answer. Mrs Paton for the defender opposed that motion.

The pursuers accept that their case turns on the establishment of a single contract agreed upon, albeit not legally constituted, by December 1997 and varied in certain respects in the Spring of 1998. The material variations are the "sliding scale element" and the "alternative site element" as referred to in my earlier opinion. In the discussion on the motion Mrs Paton accepted that, insofar as concerned consensus, the material now produced by the pursuers was sufficient (on the assumption that my general approach to the issues of relevancy was well-founded) to cure the difficulty relative to the alternative site element. That matter had, it now appears, been reported to the defender's Home and Property Services Committee in a report by Mr Docherty dated 31 March 1998; on 14 April 1998 the committee decided to approve the action, taken earlier by Mr Docherty in consultation with the chair and an ex-officio member, agreeing revised terms including that relative to the alternative site element.

The position in relation to the sliding scale element is more complex. It now appears that a proposal concerning that element was before the committee on 14 April 1998. What, however, was then reported to it was an arrangement which, in a material respect, differed from that which the pursuers aver was the arrangement agreed with them. While each provided for damages at a progressive and prescribed rate to be set off against the purchase price payable by the pursuers for the new retail unit, the pursuers aver that such set-off was to progress without limit of time until practical completion was in fact achieved. The arrangement put before and approved by the committee was that set-off would not extend beyond March 2003, at which point the amount of set-off would equal the amount of the purchase price. The report also bore that the arrangement described had been "provisionally agreed".

In these circumstances the pursuers cannot rely on committee approval for consensus in respect of an important aspect of the bargain which they seek to have declared. They require to rely on a contention that effective consensus between the parties was achieved prior to and independently of committee approval. For that purpose they rely on the defender's Standing Order 36 ("Passing on responsibilities to committees and officers") . That Order provides by paragraph c:

This Order seems to have been operated in respect of a number of matters arising between these parties in the early months of 1998. The precise legal effect of operation of the Standing Order is, however, not yet clear. Nor do the pursuers have specific averments relative to a sequence of events (including the participation of the individual members whose involvement is a necessary element in operation of the Standing Order and any communication to the pursuers of any decision taken under this procedure) from which it could be concluded that the arrangement which they contend for was effectually made by this means. However, I would not on those grounds have refused to allow the minute of amendment to be received. In the circumstances of this case (including the surprising non-disclosure by the defender of matters which have emerged only following the debate) I would have allowed it to be received with time being given to the defender to answer. In those answers I would have required of the defender a full and candid account of the actions of its officers and members in respect of this matter. Only thereafter would I have formed a view as to whether amendment should be allowed or refused.

However, the pursuers face a more fundamental difficulty. In my earlier opinion I expressed the view that the pursuers' averments were irrelevant to instruct the satisfaction of section 1(3) and (4) of the Requirements of Writing (Scotland) Act 1995 in respect of the contract (as varied) which they seek to have declared and enforced. By their minute of amendment the pursuers seek to make two changes relative to that aspect. The first is an alteration from "In or about early March" to "On 20 March" for the time when pegging out of the Caird Street site occurred. The second is the addition of averments directed to communications in February and in March 1998 between one of the first pursuer's directors and an employee of the defender (described as holding the position of Hamilton Town Centre Manager) relative to the closure of the car park on the Castle Street Land. Those communications are said to have led to the car park being closed to the public from on or about 12 March 1998, with resultant loss of income to the pursuers thereafter.

In my view neither of those proposed changes meets the difficulties already identified in relation to satisfaction of the requirements of section 1. The variations in relation both to the sliding scale and to the alternative site elements occurred, in terms of consensus, at earliest on 19 March 1998 after the closure of the car park, which cannot accordingly have been an action in reliance on the contract as varied. There is, moreover, nothing which makes any of the actions relied on (including any continuing loss of revenue from the car park) referable to the contract as varied rather than to it prior to variation. The proposed amendment does not, in my view, cure this fundamental difficulty. In these circumstances no advantage would be served by allowing the minute to be received. The motion is accordingly refused on that ground.

I should add that Mrs Paton argued, somewhat faintly, that the minute should be refused as coming "too late". I would not have refused its receipt on that ground.

It was accepted that, if I refused to allow the minute to be received, the appropriate course to give effect to my views was to sustain the defender's first plea-in-law and dismiss the action. That I shall now do.