Scottish Court of Session Decisions

[1] This action came before me for procedure roll discussion. It had started its history in the Sheriff Court in 1996, having been remitted in July 1996 to this Court. The Record closed on 4 December 1996. The case called on the procedure roll on 26 July 1997. The pursuer was given leave to amend and the procedure roll diet was discharged. No Minute of Amendment was lodged until15 October 1997. The defenders did not consider that they required to answer that Minute of Amendment.

[2] The case then called again on the procedure roll on 14 May 1998. Once again the pursuer sought leave to amend and on this occasion a substantial Minute of Amendment was lodged. The procedure roll diet was discharged and the pursuer was found liable to the defenders in the expenses of the action to date. The Lord Ordinary also directed that as a condition to the pursuer further proceeding with his action, he should make settlement in full of the taxed account within four weeks after taxation.

[3] On 7 September 1999 the Record was opened up and amended in terms of the pursuer's Minute of Amendment and the defenders' Answers thereto. The case called on the procedure roll in May 2000 but this diet was discharged because no judge was available to conduct the hearing.

[4] The action arises out of activities which the pursuer carried out as an architect for clients under the Common Repair Scheme administered by the defenders in the 1980s and early 1990s. As I understand the position, he complains that certain of the defenders' representatives brought about a state of affairs whereby that source of work was lost to him and whereby he was caused further loss and damage. As originally pled, the action was based on common law negligence and defamation on the part of certain of the defenders' employees. As a result of the Minute of Amendment lodged on 14 May 1998, the case of common law fault was removed and the pursuers' pleadings sought damages from the defenders for defamation by the defenders' employees and, separately, a new case was introduced for damages for inducement of breach of contract by those employees. As was pointed out to me by Miss Shand, Advocate, who appeared for the defenders, the averments of loss contained in Article 7 of the Record which had previously supported the case of common law fault, and indiscriminately, the defamation case, were not substantially changed by that amendment, notwithstanding the radical alteration of the basis upon which the claim was being presented.

[5] In submission before me, counsel for the defenders sought dismissal of the action. She made a formidable and detailed attack on the relevancy and specification of the pursuer's pleadings. She also raised questions of time bar. She pointed out many difficulties in understanding what the pursuer was exactly founding upon as being defamatory statements by the defenders' employees. She made trenchant submissions regarding the lack of relevant averments by the pursuer to support a case of defamation, in particular focusing on the requirements of the law in relation to malice and innuendo.

[6] In respect of the pursuer's case based on inducement of breach of contract, counsel for the defenders made submissions in relation to the lack of specification and clarity as to what were the inducing acts and what were the breaches of contract. Moreover, she submitted, there was no specification as to the terms of the contracts alleged to have been breached, to enable any proper assessment to be made as to what loss, if any, the pursuer had sustained thereby. The pursuer simply averred that had he completed certain schemes, he would have earned £82,069.89 inclusive of VAT. He also averred that he had sustained a cost of £9790.10 in having to do extra work outwith the scope of his agreements, without specifying the scope of those agreements or what the extra work was. The total loss to him under this head was said to be £91,859.99 yet the conclusion apparently directed at this claim is for payment of £98,657. Counsel for the defenders drew my attention to the fact that the averments in Article 6 were a leftover from the previous case based on common law negligence. It was impossible to say how this related to the case of alleged defamation and inducement of breach of contract. Apart from Article 8 of Condescendence, which purported to deal with questions of loss in respect of inducement of breach of contract, the only other Article of Condescendence which set out any quantification of loss was Article 7. The pursuer's first conclusion is for payment of £1,144,845.26. The second conclusion is for payment, as previously noted, of £98,657. The pursuer's pleas-in-law are as follows:

[7] One might have expected, therefore, that Article 7 contained the averments of loss in support of the defenders' defamation case. Article 7, however, commences as follows:

Later on in this Article of Condescendence the pursuer avers, inter alia, that he

In supplement of those averments there follow averments relating to alleged loss of commission and fees and general losses to the pursuer's business, actual and anticipated. There are averments relating to professional time and expenses having been incurred by the pursuer in dealing with all issues arising directly or indirectly from the defenders' actings. There are also averments in respect of out of pocket expenses, legal costs, loss on the sale of a property and remortgage costs. The pursuer avers that schedules are produced detailing the computation of all of the said losses which amount in total, it is said, to £1,143,845.26. The schedules which have been lodged, however, do not bring out such a total. It is to be noted that if Article 7 of Condescendence is meant to specify a claim of loss arising from defamation by the defenders' employees there is no claim in respect of hurt feelings and no apparent attempt to link any of the alleged losses to any particular defamatory statements which have resulted in the pursuer's loss of reputation and consequential patrimonial loss. All there is are averments to the effect. at p.41C-D of the Record, that

[8] When counsel for the pursuer rose to make his submissions, I asked him to address me, in the first place, on the question of damages. He frankly accepted that he could not say that there were, as matters stood, relevant averments of loss and he said that he recognised that further amendment would be required if the action were to be allowed to proceed. He was not in a position to say what any such amendment would involve. I allowed him to consider his position overnight and, if so advised, to produce a draft Minute of Amendment for consideration the next morning. I should say that counsel for the defenders immediately advised the Court that she would be opposing any motion for amendment made by the pursuer. I indicated that I was simply giving the pursuer the opportunity to reflect on what any amendment might amount to. I informed Mr MacIver, for the pursuer, that, if he were to move me to be allowed to amend, the following morning, I would expect him to be in a position to indicate, with some detail, at least what the amendment would be.

[9] At the resumed hearing, Mr MacIver said that he had not been able, in the time available, to draft any Minute of Amendment. He said that any such amendment would seek to provide relevant and specific averments of loss relating to the case of defamation and also to the inducement of breach of contract case. He also said that the Minute of Amendment would seek to focus the case of defamation more clearly in the light of the defenders' criticisms of it. Mr MacIver drew my attention to the fact that since the action was, in part, at least, an action for defamation, the pursuer did not have legal aid. If the action was dismissed, this would have very serious consequences for his client since the raising of another action would probably be precluded by virtue of time bar. The pursuer had financed the conduct of this action, including the defenders' expenses, thus far from his own resources. That, Mr MacIver said, "had led to difficulties regarding instruction". He sought time to lodge a Minute of Amendment. He accepted that if the pleadings were not amended, the consequence would be that the action would fall to be dismissed as irrelevant.

[10] In reply, counsel for the defenders pointed out that the action related to events which had occurred at least nine years ago, prior to local government reorganisation. The defenders were facing considerable difficult in investigating matters by virtue of the passage of time and reorganisation of local government and the non-availability of persons who were referred to by the pursuer in his pleadings. She related the history of the proceedings to date which I have endeavoured to set out above. She submitted that the pursuer had had more than adequate time to get his case into good order if this could be done. There had been two previous attempts at amending the pleadings, one of which had been very substantial. The case had been in Court since early 1996. There was simply no justification for allowing a further attempt, as yet unspecified, at amending the case.

[11] I reached the conclusion that, having regard to the history of this case and, most importantly, the fact that counsel for the pursuer could not even offer an explanation as to why the averments of loss, which were so clearly irrelevant, had been left in that state, or what he could do to cure the problem, apart from saying that he would seek to amend to put on relevant averments, I should exercise my discretion by refusing the motion for further time to be granted to allow a Minute of Amendment to be lodged. The pursuer had been on notice, prior to the previous abortive procedure roll diets, by reason of the detailed Note of Arguments lodged on behalf of the defenders, of the formidable problems that there were in relation to his averments, including those relating to loss and damage, which, in my judgment, should have, in any event, been perfectly apparent to anyone with a basic awareness of the concept of relevancy. To delay, until after hearing full submissions, on behalf of the defenders, on these matters to seek to amend, again, to meet these difficulties, in my judgment, was completely unacceptable in a situation where counsel for the pursuer was not even in a position to indicate specifically what any amendment was going to say and how, therefore, it might be seen as being necessary for determining questions of controversy between the parties. I considered that adequate opportunity had been given already to the pursuer to put his pleadings into good order and that further delay simply to allow him to consider what further amendment might be made was not justified and was clearly prejudicial to the defenders. For those reasons I refused the application to discharge the procedure roll diet and to give the pursuer time to lodge a Minute of Amendment. As counsel for the pursuer, as I have already noted, accepted, that meant that the action had to be dismissed as being irrelevant. I accordingly sustained the defenders' first plea-in-law and dismissed the action.