Scottish Court of Session Decisions

[1] The pursuer sought damages of £150,000 for injuries sustained in a road accident on the A77 on 17 July 1995.

[2] Proof was due to be heard on 29 February. On that day the parties reached agreement to settle the case. The implementation of that agreement would in the ordinary course have involved payment of £100,000 by the defender and decree of absolvitor being pronounced in his favour. The defender is presently minded not to make that payment. The pursuer has asked me to enforce it by pronouncing decree for that sum. The defender explained that he has reason now to believe that he was induced to agree the settlement figure by misrepresentations made on behalf of the pursuer. (I should add that there was no suggestion that agents or counsel acting for the pursuer had any reason to doubt that the representations being made were true).

[3] What I am being invited to do is give effect to an agreement of which all the terms, specific and implied, have not been clearly stated and acknowledged, where an arguable basis for claiming that it should be reduced is now advanced.

[4] Such a problem rarely arises in this court. When it does, however, it is necessary that the issues should be plainly identified to enable the court to determine the appropriate procedure to be followed to resolve the dispute. Once the issues are identified, I do not rule out the possibility that the appropriate way to determine the dispute may be to grant a motion for decree for the sum agreed in terms of the conclusion of the summons. On the other hand it may be necessary to allow the pursuer to amend to introduce conclusions directed to declaring and giving effect to the agreement reached on the day of proof and to allow the defender to amend to seek to reduce the agreement ope exceptionis. And there may be other possibilities. What is plain is that an informed decision on how to proceed requires that the parties' respective positions are clearly set out in writing without delay. I accept that the authorities relied upon by the defender - Dow v Hendry (1899) 2 F. 48; Dornan v Allan & Son (1900) 3 F. 112; McAthey v Patriotic Investment Society Limited 1910 S.C. 584; North British Railway Company v Bernards Limited (1900) 7 S.L.T. 329 and MacLaren on Court of Session Practice at p.426 - are apposite to the situation where it is the pursuer in the action who is seeking to implement the extra-judicial agreement reached.

[5] I shall therefore appoint the pursuer, if he wishes to maintain his claim for implement of the agreement at this stage, to lodge a minute setting out the facts he relies upon, the remedy he seeks and any plea in law he considers appropriate, and I shall appoint the defender to lodge answers thereto, following which a hearing will take place. At the hearing the matter may be determined, or it may turn out to be necessary to order further procedure.

[6] I recognise the possibility that fresh agents and counsel may require to be instructed by either or both parties. However, I regard the issue as a fairly narrow one, capable of being formulated in writing by fresh agents and counsel very quickly. I shall accordingly appoint the minute to be lodged within seven days, answers within seven days thereafter, and appoint a hearing on Wednesday 19 April at 12 noon. I regard it as important that the determination of an action by extra-judicial settlement on the day of proof should be the final stage of the litigation, unless there are exceptional circumstances justifying further procedure. Even then, the court should endeavour, wherever possible, to bring the outstanding issue to a speedy resolution.