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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Robertson v Anderson [2001] ScotCS 114 (15 May 2001)
URL: http://www.bailii.org/scot/cases/ScotCS/2001/114.html
Cite as: 2014 SLT 709, [2001] ScotCS 114, 2001 GWD 17-669
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OUTER HOUSE, COURT OF SESSION |
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OPINION OF LORD CARLOWAY in the cause ISOBEL ROBERTSON Pursuer; against LORNA ANDERSON Defender:
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Pursuer: Davidson; Drummond Miller, W.S.
Defenders: Clancy; MacBeth Currie & Co.
15 May 2001
[1] The material issue of fact on record is whether on 21 November 1997 the parties entered into an agreement whereby if one of them won a bingo prize in what was called the "National" game then she would share that equally with the other. The material issue of law is whether any such agreement, if proved to have been reached, is enforceable.
1. EVIDENCE
(a) Not disputed
(i) BACKGROUND
[2] From around 1985 until shortly after the events with which this case is concerned, the pursuer and the defender were friends. The defender and her husband were natives of the town of Dunoon and lived there with their two children. The pursuer was not a native but had moved there in 1985 with her husband. The pursuer was aged 40 and a trainee executive. She had been a bank manager. The defender was 38 and a relief warden with sheltered housing.
[3] Between 1985 and 1989 the parties had regularly played bingo at the Mecca Bingo Hall in Greenock. In 1989 the pursuer had left Dunoon with her husband and gone to live near Oxford. The defender remained in Dunoon. The pursuer and her husband returned to Dunoon in 1995 and the parties resumed their bingo playing, this time also at the larger Mecca Bingo Hall in Drumchapel. Sometimes, the parties went on their own (i.e. the two of them together) and on other occasions with others, either again the two of them with the others or only one of them with the others. The others included Jan and Linda Robertson (relatives of the pursuer's husband), Jean Beattie and Elise Harnisch, the defender's sister when she visited from the United States. But whether on their own or as part of a larger group, they would normally go in one or other's car by ferry across the Clyde to Gourock.
[4] After her return to Dunoon, the pursuer had lived opposite the defender in Clyde Street. She regarded the defender as her best friend although the defender saw the bond between them as somewhat weaker. The parties' husbands had also been friends but there had been a serious fall out between them, for reasons not explored in detail in the evidence, in about August 1997. This had been so bad that they did not thereafter speak to one another. However, the parties themselves tried to continue their friendship to a limited extent.
(ii) BINGO
[5] Bingo, in the form played in the Mecca Bingo Halls at the material time, involved a number of separate games, perhaps as many as fifteen, during the course of an evening. The contestants would usually, at the start of the evening, buy one or more cards for each game. The pursuer and defender usually bought six cards each for each game. Each card contained fifteen numbers in the form of three lines of five. The first game would begin at about 7.30 p.m. A caller in the hall would call out numbers drawn at random and, if a number called coincided with a number on a contestant's card, the number on the card would be marked off by the contestant. A prize, usually in the form of cash, would be won by the first contestant to complete, i.e. mark off, a whole line of numbers (a "line prize"). The game might then continue until a contestant had completed two lines. It would then, for a larger prize, continue until a contestant had completed a full house (i.e. all the numbers on a card, a "house prize").
[6] During the course of the games, there would be an interval in the play. Immediately after the interval at about 8.30 p.m., there would be a special game called the "National". This was a game played at the same time in all Mecca Bingo Halls throughout the United Kingdom. The same numbers would be called at the same time and be transmitted to television screens in each Hall. This game carried a house prize of perhaps a few hundred pounds. More important, however, the winner of that prize in a particular Hall would be entered automatically into a competition with the winners from other Halls in a given region. For Drumchapel and Greenock, the relevant region was the West of Scotland. The competitor in the region who had won the house prize in the fewest number of calls would win the regional prize of several thousand pounds. The regional winner would then be entered into the "National" competition, which he would win once again if out of all the UK contestants he had won the house prize in the fewest number of calls. The National prize would normally be about £100,000 and, as such, was very much a "jackpot" win in the world of bingo. It would normally be won by a person who had marked off all fifteen numbers in forty calls or less. The winners of the Regional and National prizes would be announced some twenty minutes or so after the house prize had been won and a further game had been played.
(iii) THE WIN
[7] On Friday, 21 November 1997, at about 5.45 the pursuer and the defender set off to the Mecca Bingo Hall at Drumchapel in the pursuer's car. There were no others with them. There was considerable talk on the way to Drumchapel of certain offers of employment which had been made to the pursuer. After arriving at the Hall, they played bingo with just the two of them at a table. There were over a thousand people competing in Drumchapel alone. As the National game progressed, the defender began to say things like "this is crazy" as her numbers were called with remarkable rapidity. She won the house prize of £390 in under 40 numbers called. There was then a wait whilst another game was played.
[8] At about 8.55 the National prize was announced. The manager of the Hall, Richard Horseman, came over to the table with a bottle of champagne and two glasses. The defender was, of course, almost overcome with excitement. The manager explained that there were various forms to be filled in. The prize, the manager also explained, would be in the form of a cheque but would not be available that night. The defender then filled in the forms.
[9] The parties normally caught the 10.30 ferry from Gourock back to Dunoon. However, this time they planned to go on the midnight boat. They had drunk some of the champagne, perhaps half of the bottle, but had left the rest to another table. The pursuer and the defender called in at an Indian restaurant before catching the ferry. The defender telephoned her father, Ronnie Harrison, from the restaurant and asked him if he wanted to join them for a celebratory meal at her house. He agreed. There was some discussion with him about paying off certain debts which he had. The pursuer called her mother and put the defender on the telephone to speak to her. The meal was paid out of the winnings.
[10] On the ferry, the parties were sitting in the car when they were joined by Mary McDonald, a friend of the pursuer. The subject of the win was brought up. During the ferry journey, the defender went to the toilet. The pursuer also went. They met Sandra Lauder and Lillian Wetherill. In the defender's house, they were joined by the defender's father. Her husband was upstairs in bed. He had to work early the next day and did not get up. The pursuer went home about 1.30 a.m. Her husband was still not home and she did not wait up for him. The next day, at about mid day, the pursuer and her husband left, as planned, for an overnight visit to Glasgow. She had no further communication with the defender. The pursuer and her husband returned home from Glasgow at about 6.00 p.m. on the Sunday. The defender's husband, who had awaited their return, came out of his house with a copy of the Sunday Mail. He was very angry. He showed the pursuer a copy of the photograph of the defender and asked her who was in the photograph. On being told it was the defender who was depicted in the photograph, he said "Exactly. Its her win". He made no mention of the pursuer having illegitimately removed cash from the defender on the Friday night.
(iv) THE NEWSPAPERS
[11] The Sunday Mail were quickly onto the story. On Saturday 22 November 1997, the paper's news editor asked John McEachran, a freelance journalist attached to the paper, to write a story. The angle he was asked to concentrate on was that the winner had missed her ferry because of the win. The news editor was aware that the win had been in the Drumchapel Hall. Mr. McEachran contacted the manager and obtained the defender's name, address and telephone number. The manager said that the defender was prepared to speak to the press and also confirmed that the defender had indeed missed the ferry. Mr. McEachran then spoke to the defender on the telephone. He estimated that this was probably between 12 noon and 1 p.m. as he had to organise a photographer before the first deadline for the paper at 3 p.m. Within minutes of this conversation, Mr. McEachran wrote an article (Pro. 6/2) which was printed in the Sunday Mail of 23 November 1997. He did not write the headline which reads "£108,000...Ferry good!" or the caption under a photograph of the defender for which she posed with a bottle of champagne and bingo cards at Dunoon ferry on the Saturday. The body of the article was little changed on sub-editing. It concentrated on the missing the ferry angle and also referred erroneously to the defender actually having a cheque for £108,000 in her purse as she boarded the ferry. It continued with a quotation said to have come from the defender :
"But every now and again Isabel and I go to Glasgow in the hope of winning the big jackpot. I never thought it would happen.
"The most I've ever won before is £135."
Lorna's husband, Harry, is a painter and decorator and they have two children, David, 15, and Laura, 13.
She has agreed to split her winnings with playing pal Isabel."
[12] The Sunday Post had also heard of the win. A nineteen-year-old reporter, Richard Benjamin, was informed by his editor of the win. The editor was aware of the proposed sharing of the winnings and that was the spin which he asked Mr. Benjamin to put on the story. Mr. Benjamin interviewed the defender by telephone sometime on the Saturday evening. She appeared elated. Immediately after the conversation he wrote an article which was reduced on sub-editing to inter alia the following :
"Big-Hearted Winner
Lucky Dunoon woman Lorna Anderson scooped £110,000 in a national bingo game - then split her fortune with her best friend.....
She said "I don't think I'll truly believe it until the money is in my hand but Isobel and I always split anything we win and there's no way I'll go back on that."
[13] The pursuer had no contact with journalists until January 1998 when Lorna Hughes, a journalist with the Sunday Mail, became aware that there was a problem between the parties. She looked up the earlier Mail article. She then telephoned the pursuer and went to see her. The pursuer's story was that her erstwhile friend was not going to give her the half share which she had been promised. She told Ms. Hughes that there had been a long-standing arrangement prior to the win that they would split the winnings. Despite the terms of the article, Ms. Hughes thought that it was possible that the pursuer had said that the agreement had been reached on the way to the ferry rather than actually on it or that she had said both and Ms. Hughes had selected one quotation. The pursuer gave Ms. Hughes a photograph of the parties in friendly mood which later appeared with the caption "Bingo buddies" alongside the article.
[14] Ms. Hughes then contacted the defender at her work to ask her why she was not going to abide by the agreement. She admitted that she had given the pursuer half of the winnings received on the night but, as regards the rest, it was something between her and the pursuer and nothing to do with the press.
[15] About a couple of hours after the conversation with the defender, Ms. Hughes wrote her article which appeared on 11 January 1998 under the headline "How two bingo pals failed to clickety-click over £108,000." This contained inter alia the following :
"Isabel told us : "Lorna always used to say on the ferry, 'Now, if we win the big prize, then we go halfers'. Of course, I always used to say 'Yes'. I trusted her completely.....
Isabel went on : "We'd also won the house prize of £390, which was paid in cash. We split that down the middle and bought an Indian carry-out before getting the midnight ferry back to Dunoon.".....
Last night, Lorna said : "I think this is between me and Isabel.
"I gave her half of the £390 house prize that we won that night.
"I don't want to say anything else."
[16] An interview given by the pursuer to "Bella" in January 1998 was published in the April edition (Pro. 7/2). This article, which was unattributed and not spoken to by its writer, contained the following:
"The manager came over and handed Lorna an envelope stuffed with £390 in cash. "Lorna counted out half of it to me" recalls Isobel."
[17] The pursuer held a press conference in the Summer of 1999 to coincide with the raising of the action. This was the idea of her law agent. She said that she thought it would be better to deal with the press all at once. She declined to go on a program hosted by Mr. Kilroy-Silk because it was in London but did have dealings with Scottish Television and BBC Scotland News programs. A BBC Scotland team had interviewed her on film at her house.
(b) Disputed
(i) THE AGREEMENT
[18] According to the pursuer, she had a form of ritual with the defender when they were driving to the bingo, normally when going down the hill to the ferry. The defender would say to her "I know I always ask you this, but are we going 'halfers' on the National (or the "Big One") ?". The pursuer would laugh and say "yes". The defender would then reply that she was "just checking". As time went on, it was understood that they would not just share the National but "everything".
[19] The pursuer maintained that on the night of the win, during the drive down to the ferry from Clyde Street, she had the "usual" discussion with the defender. This consisted of the defender saying : "I know I ask you this every time but are we going 'halfers' on the National ?". Because of their recent understanding, the pursuer replied : "why don't we go 'halfers' on everything." The defender had accepted that.
[20] In relation to the times when there were others in the car, the pursuer said that, with the exception of Mrs. Beattie, they would all know that there was an agreement to share winnings. If Jan Robertson were there then the agreement was that they would each keep any small prizes, other than buying a carry out supper, but share any National or Regional win. If it was someone else who was there then they would be asked to agree if they would share such a win and some said they would and some said they would not. It had only been from about the end of 1996 that her normal agreement with the defender had extended from just the National to all prizes. Even if there were others in the car who did not want to share winnings, the pursuer would still have had a separate agreement with the defender. The pursuer denied that there had been occasions when she had kept winnings.
[21] The defender, on the other hand, maintained that there were no agreements about sharing winnings in relation to the normal bingo card games (book bingo) or indeed any discussions about such sharing. She did say that she always said that if she won the "big prize" then she would share it with her friends and family in the sense of giving them some unspecified portion of the winnings. However, she said that she had never said that she was going to go "halfers" on the National or that any agreements they had would extend to all the prizes. She denied that there had been any agreement on the night of the win. She did not even use the word "halfers" in her general speech.
[22] According to the defender, she had never had a share of any previous winnings except of "table bingo" games which are similar to slot machine type games. The arrangement was that if anyone won anything half decent on the normal bingo card games then they would buy supper for the others but this was just an understanding and it was not said on every trip. There had been discussion along the lines that any winner of the "big one" might buy the others a holiday or give them a small portion of it but never that it would be split evenly. Although the pursuer and others had won small prizes before, these had not been shared.
[23] Evidence was adduced on behalf of the defender from a number of persons who had accompanied the parties to the bingo on previous occasions. Linda Robertson had gone to play bingo with them on a number of occasions after the pursuer's return from Oxford, although perhaps only once to Drumchapel. She was unaware of any agreement having been reached in relation to the National or any other prize, although the understanding was that anyone winning a house prize would buy supper. The exception was the table bingo. She would not have shared any win. Although some of her friends did share, she would not have become involved in such an arrangement. Any prizes won by the pursuer were kept by her. She was aware of one such win but that might have been before the pursuer's return from the south.
[24] The defender's sister, Elise Harnisch, who lived in America, was over for about three weeks in August/September 1997 and went to the bingo twice in that time, once to Drumchapel and once to Greenock. On the way to Drumchapel she recalled the pursuer saying "are we sharing" and everyone agreeing in relation to the National. There was no agreement in relation to the house prizes. Some prizes had been won, including by the pursuer, and were not shared. No arrangement had been proposed during the Greenock trip and again, when pursuer won, the win was not shared.
[25] Jean Beattie had also played bingo with the parties after the pursuer's return from England. She had last gone with them some months before the win. No-one had ever mentioned what would happen if one of them won the National. She was never asked about sharing any prizes. There had been no sharing of prize money other than by way of the purchase of the supper. Jan Robertson had also gone with the parties to play bingo perhaps half a dozen times after the pursuer's return from Oxford. It had been said that there would be a sharing of the National prize money but Mrs. Robertson explained that this was just talk and it was only that everyone would get a share but not that there would be an even split. This had been early on in the visits to the bingo and not in the time leading up to the win. It had been talk in the Hall and not the car. There had been no discussion about sharing house prizes and these were not in fact shared.
(ii) THE WIN
[26] According to the pursuer, after the house prize win, a brown envelope containing the cash prize had been brought to the table. The announcement of the National win was made when the manager was at the table. There was no specific discussion on what was to happen with the money but they both knew they had won £54,000 each and this was mentioned by the defender to other people, including the manager, at the table. The defender said that the two of them were "halving" the money "as we always did". The pursuer said the defender then went to telephone her husband and she stayed at the table. She also said that the two of them went to the pay-phones in the main foyer of the Hall. The pursuer telephoned her own husband and said that "we have won £54,000 each".
[27] Mr. Richard Horseman said that, at the table, the parties had been very excited. The defender said that they had always shared their winnings in the past and they were going to share this one. She said they were going to split this one. Mr. Horseman was impressed and was adamant that it was the defender who had said this, otherwise he would have been sceptical. He said that the defender had wanted to telephone her husband and he arranged for an assistant to take her to a telephone. The assistant reported back to him, for some reason, that the defender had said to her husband "We've won the National today". He said the forms were filled out at the table although he could have been wrong about that.
[28] In the Indian Restaurant, the pursuer said that the defender had said to her (the defender's) father on the telephone that they had won £54,000 each. She was standing next to her when the defender had said this. The defender said to the pursuer's mother that she had something to tell her and asked if she was sitting down. She then told her that they had won £54,000. She asked the pursuer's mother if she wanted a cruise or a holiday because she would make sure that she would get the cruise or holiday from the pursuer's share of the winnings.
[29] When they were in the queue for the ferry, the pursuer said that the defender had given her the envelope and asked her to divide it up saying "you'd better split this between the two of us." The pursuer did this. They talked about what they would do with the money. When Mary McDonald entered the car, the defender said to her "You'll never guess what's happened tonight, we've won £54,000 each" at the Bingo. According to the pursuer, in the toilet of the ferry, Sandra Lauder had said to her : "you'll get a wee holiday". She did not think the split had been mentioned been mentioned in Mrs Lauder's presence. In the defender's house, the pursuer said the defender told her father that "we had won £54,000 each at the Bingo". He said he was delighted and that it could not have happened to two nicer girls.
[30] In support of her position, the pursuer adduced her mother, Mrs. Ruth Pearce, in evidence. She said that her daughter had telephoned her and said "I've got someone who wants to talk to you". The defender then came on the telephone and said that "they" had won the national prize. "They" meant the two parties. She thought the words used would have been something like "We've had some luck. We've won some money". "They" said that they were going to share the money and she understood this to be an even split of £54,000 each. She understood that the defender was not offering to pay for her holiday but to make sure the pursuer gave her the money. The pursuer also lead Mary McDonald who had gone into the pursuer's car on the ferry to congratulate the pursuer on her job offer. According to Mrs. McDonald, the defender had said "they'd won £54,000 each". The defender did not say that it had been her win although Mrs. McDonald knew that it had been her ticket that won. They said that they had had only small wins in the past and she had the impression that they had shared those.
[31] The defender, on the other hand, said that she had been stunned and shocked by her win which was announced by the manager over the public address system. After the announcement, the pursuer kept going on about going to Jamaica and the defender had said to her that she would get a holiday in Jamaica. The manager had asked her to go to his office to fill in some forms but she went to the foyer with another member of staff where she completed them at a high counter. It was in the foyer that she had said she would need to telephone her husband and she did so when the pursuer was still at the table. The pursuer later telephoned her own husband from a pay-phone.
[32] The defender's husband, Harry Anderson, had been in bed at the time of the win as he had an early start the next day at his work. His wife had telephoned and, according to him, had said "Harry, I've won the bingo...I've won the big one." According to Mr. Anderson, she did not say how much she had won. Curiously, he did not ask her nor did he wait up.
[33] The defender said that she had telephoned her father and told him not to worry about his debts because she had just won the National. She did not say that they had each won £54,000. She said to the pursuer that she would be able to take her mother on the QE2. The pursuer had then telephoned her mother and the defender asked her mother how she would fancy a holiday on the QE2. The defender was going to pay for this and she did not say that she would make sure that the pursuer would pay for it out of her winnings.
[34] On the ferry, the house prize winnings were in a blue and white envelope sticking out of her handbag. The envelope had already been opened in the Indian restaurant. She said to the pursuer "I want to gie you something". The pursuer had thereupon taken it upon herself to lift out the envelope and count out the money into two piles. The defender did not protest at this or take umbrage albeit that she thought that she was coming off worse as she had already paid for the ferry tickets. Despite the terms of her pleadings, she had never suggested that the pursuer had stolen half of the money. Rather it had been a gift from her to the pursuer.
[35] On the ferry, when Mrs McDonald appeared, the defender said to her: "I won the National tonight" and not "We've won £54,000 each." Nothing more was said and the defender had gone off to the toilet where she had met Mrs Lauder and Lillian Wetherill. The pursuer had come into the toilet later. In the house, she did not say to her father that they had won £54,000 each nor did he reply that it could not have happened to two nicer girls. She had told him that she had won the whole lot albeit that she was going to give the pursuer some of it.
[36] The defender led Mrs Lauder but not Lillian Wetherill. Mrs. Lauder said that, when she was in the toilet, the defender had come in and said she had won the "big one", i.e. the National. When asked by Mrs. Lauder what she was going to do with the money, she said she was going to give the pursuer something. The pursuer had then come into the toilet and Mrs. Lauder had said that it was great about the defender's win and the pursuer had agreed. The pursuer was also quite excited and happy and had commented that she might get a holiday which she thought she needed. Mrs. Lauder had also commented about the defender deserving the win and again the pursuer had agreed. There was no mention of a pact to share the win.
(iii) THE JOURNALISTS
[37] Mr. McEachran no longer had his notes of his conversation with the defender before his article was written. She had been happy on the telephone and had agreed to a photograph being taken. Before talking to her on the telephone, Mr. McEachran had no knowledge of any arrangement to share in the winnings. In particular he said that neither his news editor nor the bingo hall manager had mentioned this. However, he asked the defender what she was going to do with the money. She told Mr. McEachran that she was going to "split" the money with her friend Isobel. Mr. McEachran asked her to repeat what she had said and told her he thought that this was very generous. She said that they had agreed "on the way up" to the bingo hall that they would split the money if they had any winnings. Mr. McEachran asked her for her friend's surname but she would not give it because her friend was unaware that she was speaking to the press. Mr. McEachran conceded that the passage in his article about the cheque being in her purse was possibly journalistic licence. He also accepted that the spin on the story about the "missed" ferry was perhaps inaccurate in the sense that he knew that the ferry had not been missed accidentally. He did not accept that there was any licence or inaccuracy about his reference to the "split" of the money and was clear that she had not said "share" the money.
[38] Mr. Benjamin also did not have any notes now but initially said that the defender told him that she had won £50-60,000. He had by then understood that she was going to split the money with a friend and asked her about that. She then said : "Yes, we've always said we'd split any money we won." He asked her if there was any prospect of her going back on her intention to split the money and she said "no". He thought the quotation used in his article was an accurate representation of what the defender had said to him.
[39] The defender said that she could not remember what she had said to the journalists but had probably said to them that she was going to give her friend "a share" of the winnings. She did not say that she was going to give her half. She did not say that she was going to "split" the winnings nor that they always "split" anything they won. She recalled not wanting to speak to Ms. Hughes and had given her little information other than telling her not to contact her at her place of work. She had said that she had shared the house price with the pursuer as this had happened. She did not say that "we" had won the house prize.
(iv) THE AFTERMATH
[40] The pursuer said that after the defender's husband had said that it was his wife's win he had added "you'll get something but you're not getting half. I'll decide". He also said that the defender was not well and had been at hospital. He said that the pursuer had made her very ill.
[41] On the day after the win, the defender said that she had not been able to eat anything, had developed a rash and swollen fingers. She was shaking and had eventually gone to the casualty department of Dunoon Hospital. She accepted that her husband did not want her to give the pursuer anything but had said that it was up to her. He had not threatened her or even had cross words with her. She had gone to stay with a relative in Glasgow but this had not been caused by any fall out with her husband. Rather, the problems had stemmed from the rumours about the town that it had been the pursuer who had won the bingo and that the pursuer was giving the defender a half share. This had emanated from a barmaid at a bar frequented by the pursuer's husband. The defender had been in the Commercial Bar when friends had told her about this. She had also been told this by the barmaid on the Saturday morning when putting a bet on for her husband at the bookmakers. This had caused the defender considerable upset because it removed the glory from her.
[42] The defender's husband maintained that, on the Saturday evening, his wife had come in to the house crying and shaking because of what had been said about town concerning the pursuer having won the bingo. It was being said that there was to be a fifty fifty split. However, although his wife had said that she would give the pursuer "a share", she had not mentioned an equal division. He was raging about this and said he would sort it out. The next day he waited for the pursuer and her husband to return. When they did so he had challenged them about the win. When the pursuer had said that it was between her and the defender, he had said that there was no way that she would be getting half of the winnings. He denied accusing the pursuer of making the defender ill. He denied saying that he would decide on the appropriate share to give to the pursuer.
[43] He accused the pursuer and her husband of being thieves and the pursuer of being a liar. He also thought, from what he understood from the defender, that the pursuer had helped herself to half of the house prize win by removing the cash from the defender's hand bag.
(c) Resolution of Disputed Evidence
[44] I accept the evidence of the pursuer that an agreement to share the proceeds of any win of the National prize was reached with the defender on the way to the Mecca Bingo Hall on the night of the win. The pursuer was a reasonably articulate witness who explained her position clearly and calmly. Although I did not accept her evidence in its entirety and considered that on at least two issues she was not telling the truth because she regarded that truth as being potentially damaging to her cause, her general demeanour in the witness box did not provide me with any reason to reject as incredible or unreliable her evidence on the critical issue of whether an agreement had been made. On the contrary, I have concluded that her evidence on that point was truthful and reliable.
[45] One ground of criticism of the pursuer was that, on the one hand, she said that she was anxious to avoid contact with the media yet at the same time she allowed at least one of the television companies to film her at home and had participated in a press conference albeit, she said, on the advice of her solicitor. I am not convinced that the pursuer was being entirely frank about her approach to media coverage at around the time of the press conference. Her position on this did seem somewhat contradictory and I accept the criticism of her that she was rather keener in obtaining publicity for her cause than she was prepared to admit. However, I am inclined to attribute that to a failure on her part to have thought the matter through both at the time and prior to giving evidence rather than as an attempt to disguise her position. I had no reason to reject her basic contention that the media contacts were promoted by her law agent albeit that the advantage to the pursuer in such contacts was not at all clear. Ultimately, I have reached the view that this matter does not have a substantial bearing on her general credibility and reliability.
[46] On the issue of whether agreements were always reached with the defender and others in the manner she suggested, a further ground of criticism was that her evidence on this was contradicted by many of the other bingo players. However, I reject her evidence in this area first because in any event I thought it inherently improbable that there would be an identical discussion between friends on the same subject and at the same location using the same terminology every time they visited the bingo. I was not at all convinced that there was a "ritual" as described by the pursuer. On the contrary, I thought that the pursuer was exaggerating the extent to which agreements were reached and knew that she was so exaggerating. In this regard, it is significant that the evidence of Linda and Jan Robertson and Mrs. Beattie did not support a frequency of agreement along the lines suggested by the pursuer. I accept their evidence first to the extent that had such a level been in existence then they would have been aware of it and I believed them when they said that they were not aware of agreements being reached. I also accept their evidence secondly that there had been no significant past sharing of wins and in that regard reject the pursuer's denial of this. Again, if such sharing had gone on then the other players would have been aware of this yet none spoke to it occurring. On balance, I think their evidence should be preferred on this point and suspect that the pursuer was mistakenly denying that she had not shared her own past wins as she thought it would be damaging to her case.
[47] The fact that some of the various bingo players did not recall agreements to share prizes does not, however, lead me to conclude that none were ever made. Indeed I am of the view that they were made on occasions. The evidence of Mrs. Harnisch was, I thought, significant on this point. Her evidence, which I accepted, pointed towards the existence of such agreements at least in relation to the National prize. I therefore looked to see what else supported or contradicted the pursuer's contention that an agreement had been reached on this occasion or supported or contradicted the defender's position.
[48] The evidence of the journalists McEachran and Benjamin was important in this area since they appeared to be independent witnesses attempting to recall, as best they could, what the defender had actually said to them on the day after the win. I was unable to detect any reason why they should not be regarded as credible and also considered that, with a degree of artistic licence especially in relation to their use of purported quotations, they were reasonably reliable too on the critical issue of whether the defender had told them she was to share the winnings. Their use of quotations tended to be something less than that which might have been adopted if the object of the exercise had been to reproduce an exact transcript of direct speech. Rather it involved sometimes an amalgam or sometimes a précis of what the interviewee had said. No doubt if matters were otherwise, the story would be less interesting and be difficult to fit into the column inches needed. There were certainly matters in the initial Sunday Mail and Sunday Post articles which were not strictly accurate, such as actually having the cheque on the ferry or the amount of the win. I do not regard these inaccuracies as significant but as the product of legitimate journalistic licence.
[49] Mr. McEachran was clear that the defender had said to him that she was going to "split" the money with her friend the pursuer. She said that they had agreed this "on the way up" to the bingo hall. Mr. Benjamin also said that she had told him that they were going to split any money won. Both these journalists appeared to be reporting the same type of statement from the defender, i.e. that she had agreed to "split" the money. I accepted their coinciding evidence as credible and reliable on this point. In that regard, I do not think that they were simply sticking to the stories in their articles rather than recollecting what had been said even although, no doubt, the existence of the articles might have been influential in prompting their recall of events.
[50] It was argued that nevertheless the use of words like "split" or "share" did not necessarily mean equal sharing and neither necessarily referred back to an agreement. No doubt that is correct as a generality but in the contexts used in this case, I was of the view that that is what was meant by the defender when she spoke to the journalists and, at an earlier stage, the bingo hall manager. I should add at this juncture that I did not place any great reliance or importance on the contents of either the article written by Ms. Hughes or that appearing in Bella. Both were written some time after the events when, to a degree, the parties' positions had become polarised. The stories, with again some minor inaccuracies partially caused by legitimate degrees of journalistic licence, were essentially only a rehearsal of these positions. I did not regard any of the discrepancies between the contents of the articles and the pursuer's evidence as significant including that relating to the precise geographical location of the agreement.
[51] The evidence of the journalists McEachran and Benjamin was supported by that of the bingo hall manager, Mr. Horseman, who again spoke to the defender saying that she was going to "split" the money. I found the manager credible and reliable on this point. He again was an independent witness. Although, no doubt like the journalists, he could not recall all the precise words used, he recalled the gist of what the defender was saying and it supported the pursuer's stance. It was argued that the manager ought not to be regarded as reliable because he had said that the defender had also said that they had shared previous wins yet this had not in fact occurred. The fact that their had been no actual sharing of previous prizes does not mean that the defender did not use that expression. I suspect that the defender did use this expression in the excitement of the moment. There were discrepancies between the manager and others in relation to where the forms were filled up and where exactly the parties were at particular moments but I did not regard them as important. Equally, although it was suggested that, because the manager had been left in the company of the pursuer for some time, he might have been influenced by what she had told him during that period, this possibility (and it was only that) did not effect my view that the manager's recollection of being told by the defender that she was going to split the winnings with the pursuer was accurate. This is so even although it does seem that he did not think to mention this aspect to Mr. McEachran when he contacted him. That may well have been because the angle which Mr. McEachran was pursuing in his enquiries was a different one relating to the missing of the ferry
[52] Of the various people met on the ferry, I had no reason to think that they were not trying to tell the truth or were not reliable. In particular, I thought Mrs. McDonald gave her evidence in a straightforward way and she said that the defender had told her that they had each won half of the total prize money. Again this is consistent with the pursuer's version as supported by the journalists and the bingo hall manager. It is correct to say that the detail of Mrs. McDonald's evidence about exactly what was said in the car was not always entirely consistent with the pursuer's account but, in the excitement of the moment, that is not surprising. It is the coincidence of Mrs. McDonald's recollection about the defender stating that both parties were winners and the pursuer's position that is significant. Mrs. Lauder's evidence was, on the other hand, somewhat inconclusive. I had no reason to doubt her credibility or reliability but her account of what was said to her by the parties and what she said to the parties did not exclude a sharing of the winnings. I should also add that I was also not prepared to place a great deal of weight on what Mrs. Pearce said as she was not at all clear about what had actually been said to her over the telephone. She was really giving evidence of the impression she had gained during the conversation but it was impossible to gauge, from her recollection of what was actually said, whether that impression was soundly based.
[53] It is also of significance that the house prize was, one way or another, divided equally by the parties in the car. Although the defender's position was that she had not agreed to the counting and sharing of the money in advance and that this occurred as a result of the pursuer's unilateral actions, the absence of any complaint by her to anyone at the time and her acceptance of what had occurred suggested that this equal division was not a sudden unexplained occurrence but something referable to an earlier concord. It was of note that even in his rage on the Sunday, the defender's husband did not complain of any unwarranted removal of a portion of the cash.
[54] Set against the formidable body of evidence stating that the defender had said that she was, as agreed, to share the winnings, was the defender's evidence itself. I formed the view that the defender was a generous spirit, perhaps rather more so than the pursuer. She was very nervous in the witness box and at times did not seem to answer the question asked. I formed the view from her demeanour that she was not telling the truth about whether an agreement had been reached on the way to the bingo hall. I also thought that, in this regard, she was genuinely upset about telling the court what ultimately I had to regard as untrue evidence. In reaching my view I attempted to make due allowance for the fact that the defender was less naturally articulate than the pursuer. However, if what she was saying were true, i.e. not only that no agreement to share had been reached but also that she had never said otherwise, then I would be bound to reject the evidence of several independent witnesses whose testimony was to the contrary. I do not feel able to do that in this case. I accordingly reject the defender's evidence on the question of the agreement and what she said in particular to the journalists, the bingo hall manager and Mrs McDonald
[55] There was some criticism of the defender's evidence based upon it being either unsupported in her pleadings or contradictory of them. Much was made of the averment of the pursuer "helping herself" to the money in the handbag. This was a serious allegation not ultimately supported in quite the way averred in the evidence. Equally there was the defender's eventual position that she was planning to gift some of the money to her friends and family but this was nowhere foreshadowed on record. It is certainly unfortunate that there appear to be fairly significant discrepancies and omissions relative to the defender's proof and record. However, I am not of the view that these problems reflect on the defender's credibility and reliability rather than her failure adequately to understand or check her written case in advance of the proof.
[56] The defender's position was not directly supported unequivocally by any witness. In this regard, I do think it is a matter for legitimate comment that the defender's father was not called by her to support her position given his role soon after the events. Her husband gave evidence about her being upset about the circulating rumours that the pursuer had won the prize and to his rage also at this. However, I found it surprising that they should be so upset at what, according to their evidence, they knew to be entirely unfounded. It is odd too that no issue was ever raised with the press about what they must, if they are telling the truth, have perceived as distressing inaccurate reporting.
[57] In giving his evidence, Mr. Anderson adopted a very belligerent and aggressive approach suggesting that he was not at all happy at being in a court setting. He displayed considerable enmity towards the pursuer and her husband. His evidence displayed little sense of balance and no element of impartiality and I was unable to accept him as a credible and reliable witness. However, even from his own account of the meeting on the Sunday, it is clear that he would have been very upset had any money from his wife's win fallen into the hands of the pursuer or, even worse, her husband. I am sure that he would have tried to stop this occurring whether or not his wife had reached an agreement with the pursuer beforehand. Whether he was instrumental in creating this dispute is rather too speculative a matter upon which to form a view but what can be said is that he would not have been at all pleased had he found out about his wife reaching the agreement founded upon by the pursuer. In this regard, I accept the pursuer's evidence and reject Mr. Anderson's denial that he did say that she was not going to get half of the money and that he would decide.
2. OBJECTIONS
[58] A number of objections were taken by the pursuer during the course of the evidence which at the time I repelled under reservation of all issues of its competency and relevancy. These objections were, for the most part, maintained on submissions at the end of the proof. I formally repel these objections.
(a) Absence of Record
[59] Objection was taken on the basis of lack of record to it being put to the pursuer and adduced from the defender that the only sharing agreement was in relation to "table bingo" winnings since what was on record was that there was an agreement only in relation to the winnings from "fruit machines". During the cross examination of the pursuer counsel also objected to issues being raised concerning agreements reached or not reached on occasions other than on the night of the win. The objection, which was also repeated in relation to the evidence in chief of the defender and others who gave evidence of travelling to the bingo with the parties, was also based on lack of record since, it was argued, the only agreement averred was between the parties concerning fruit machines and the only agreement averred in relation to ordinary card bingo was the one averred by the pursuer as taking place on the night of the win..
[60] I am of the view that there is sufficient basis on record for this evidence. The pursuer maintained that she had reached an agreement on the particular night. The defender denied this on record. The defender then averred that other persons travelled with them on occasions to go to the bingo and followed that with an averment that the only agreement was relative to fruit machines [7 C-D]. These two averments are sufficient to lead evidence that no agreements were reached on these other occasions. So far as the reference to fruit machines was concerned, there was no evidence that there were any fruit machines at the bingo halls and it seemed clear that this averment was placed on record based on some form of misunderstanding about just what "table bingo" was. This is unfortunate but I do not consider that anything material turns on the matter nor do I think that the pursuer has suffered any prejudice as a result. Had I thought that the issue was of importance, I would have allowed the defender to amend, as I was moved to do, by substituting "table bingo" for "fruit machines" at 7 D-E.
[61] Counsel objected on the basis of lack of record to the defender cross examining the pursuer and examining the defender in chief on a version of events whereby the defender had been in an irrational state of mind after the win and, because of that, offered to gift the pursuer a part of the winnings. He also objected on the same basis to it being put to the pursuer and taken from the defender that the £390 was divided in any manner other than that specified by defender on record, namely that the pursuer had "helped herself to the sum of £170 from the defender's purse".
[62] There is considerable force in the first of these two objections. The defender simply denies the existence of any arrangement and does not aver anything about intending to gift the defender anything. However, given that the pursuer herself avers that she was given the half share of the house prize, I think that looking at the record as a whole there is probably just enough to permit the defender to run this alternative line. In relation to the split of the house prize, the wording of the defender's averment on this is casual and unfortunate, perhaps derived from what the defender's husband had said. However, there was sufficient on record about this transaction (which involved only the parties) to enable whatever evidence each party had to offer on this aspect to be admitted.
[63] Objection was also taken during cross examination of the pursuer to the defender's counsel putting an alternative version of the conversation with the defender's husband to the pursuer since the defender's version on record was that any such conversation was simply denied. Again there was considerable force in this. The defender ought to have made her position on record clear. However, this aspect of the case involved only the pursuer, her husband and the defender's husband. I do not think any material prejudice was caused to the pursuer, who was able to deal with the matter in her evidence, and the pursuer's averments coupled with the defender's denial were just enough to allow the defender to develop this area as she wished.
(b) Newspaper Articles not Lodged
[64] Objection was also taken to counsel for the defender attempting to lodge late, during cross examination, the article from the Sunday Mail [7/1] dated 11 January 1998 which purported to have quotations from the pursuer in it. However, the objection was taken after the pursuer had already answered questions to the effect that she had given an interview to the Sunday Mail journalist concerned and the resultant article had contained quotations attributed to her. The complaint here was one of ambush. However, since the article was clearly well known to the pursuer and had been seen by her, I allowed it to be received late. In fact, it had already been lodged, perhaps by mistake, as part of the pursuer's inventory being attached to the earlier Mail and Post articles.
[65] More important, objection was taken to the defender using in cross-examination articles from newspapers and magazines which had not been lodged in terms of the rules of court (RC 36.3). This was when the defender sought to use a copy of Bella. Counsel maintained that, if the magazine were not lodged, it could not be used. He referred to Sheriff MacPhail's opus on Evidence in the Stair Memorial Encyclopaedia (Vol. 10 § 557) where it is said :
"In civil proceedings, rules of court provide that all productions which are intended to be used in evidence in a proof or jury trial must be lodged prior to the diet. It has been held in the Sheriff Court that while these rules do not apply to documents used in cross examination of witnesses other than parties, documents used in the cross examination of parties must be lodged (Anderson v Urban, 11 November 1985, unreported, Sheriff Principal Dick)...The civil rules of court do not apply to a document written by a witness and used merely to test the credibility of that witness: such a document may be produced at the diet...(Paterson & Sons (Camp Coffee) v Kit Coffee Co (1908) 16 SLT 180; Walker and Walker : Evidence § 300(b)).
Counsel referred to the oft-cited decision of Lord Salvesen in the Outer House in Paterson and Sons (supra). The report is a short one and is written in indirect speech. It records that an objection was taken during the cross examination of a witness who was not a party. The parties included a partnership and a limited company. The report reads :
"Lord Salvesen said that there was a distinction between documents which formed a substantive part of a party's case and documents used solely for purposes of cross examination in order to test the credibility of a witness or to refresh his memory. The [rules of court] only applied to documents which were intended to be used or put in evidence, and not to documents the value of which depended on whether a particular witness was or was not adduced by the opposite party. Thus to put in convictions and letters whose only use would be to affect the credibility of the person to whom they applied would manifestly be out of place while it was still unknown whether the person was to be adduced as a witness, and to apply the rule to cases of this sort would have the effect of destroying cross-examination as a means of testing the credibility of witnesses."
[66] Counsel for the defender argued that he could use the document since it was not part of his substantive case and did not fall within the phrase "intended to be used at the proof" in the rules. He was using the document to test credibility. It was impossible for the defender to have predicted exactly what the pursuer was going to say in the detail of her evidence. If an inconsistency arose with an apparent previous statement quoted in a newspaper or magazine, he was entitled to use the article in cross-examination and put its content to the pursuer for her comment. In any event, the Court could allow the late lodgement of the document.
[67] I agree with all that is attributed to Lord Salvesen but must disagree with what Sheriff MacPhail attributes to Sheriff Principal Dick. There is no doubt that if a party intends to use a document as proof of an averment on his record then he must, in terms of the rule of court, lodge that document in advance of the proof as a matter of fair notice of the existence of that document as evidence. He may also, in certain circumstances, require to refer specifically to the document on his record. If a party intends to use a document which contains a written statement signed by a party or witness (e.g. a director of a limited company or an agent of a party), to prove an averment then it may be necessary to lodge the document as proof of that written statement. In such a situation, the document would be the best evidence of the statement and, normally, its production would be required as proof, or part of the proof, of the averment. Indeed, even if the statement were an oral one, there may also be a requirement to give fair notice of that on record and to produce any recording or reproduction of the admission deemed necessary to prove the statement's content.
[68] It is equally clear that if, in the course of a proof or trial, a witness gives evidence then he can be cross examined on the basis that he has made a prior statement which is inconsistent with his evidence (Evidence (Scotland) Act 1852 (15 & 16 Vict. c.27) section 3). There is no difference between a party as a witness and any other person in this regard. Indeed, any distinction would be an artificial one given that the party to a cause may not be a natural person at all or may act solely through an agent. The alleged inconsistent statement may be oral or written. If it is oral then it may have been recorded electronically or manually and it might have been reproduced in published material. Before the proof or trial, the party cross examining cannot know exactly what such a witness is likely to say when he comes to give evidence. He may have precognosed the witness or, if the witness is a party, he may have some notion about what he might say because of the record but not the detail of it. In the course of the evidence the detail may appear inconsistent with the contents of a statement known to the cross-examiner. He is, in my view, perfectly entitled to put the inconsistent statement, whether oral or written, to the witness with a view to testing his credibility or reliability. That having been done, he can also, in my view (especially if the witness denies or says he cannot remember the statement), produce any written version of the statement or indeed any written or electronic recording or reproduction of the statement and place that in front of the witness (whether a party or not) for his comment without any necessity to lodge it. If he does so then at least at the time of putting it to the witness he should provide a copy of any written recording or reproduction to the Court and any opponent. However, I do not consider that he need do so in advance since : (a) it would not be practicable to lodge every possible recording of a statement of every witness or even every party in advance of the diet; and (b) to do so would destroy the effectiveness as cross examination as a useful forensic tool. If and when any recording is provided, it may be useful to add it to an inventory as a production but I do not think that such a course is mandatory. In this case I allowed the article to be put and lodged as a production. I did, in any event, not consider that this would constitute any form of ambush given that the article concerned an interview of the pursuer voluntarily given. The contents of the article would, I am sure, have been well known to her.
3. LAW
(a) Pursuer's Submissions
[69] The pursuer maintained that if an agreement had been reached between the parties regarding the division of the proceeds of the win then that was enforceable, as a matter of contract, and the pursuer's plea-in-law ought to be sustained. The defender had a plea that the bargain was a sponsio ludicra but this was not the case on the facts since the contract was collateral to the bet (Gloag : Contract (2nd ed.) pp. 581-3; Davidson : "Voluntary Obligations" Stair Memorial Encyclopaedia Vol. 15 para. 768; Graham v Pollok (1848) 10 D 646; LP (Boyle) at 648; Lord Mackenzie at 648-9; Lord Fullerton at 649; Cumming v Mackie 1973 SC 278; Knight v Stott (1892) 19 R 959 LP (Inglis) at 962; Calder v Stevens (1871) 9 M 1074 LJC (Moncrieff) at 1077). The case of Forsyth v Czartowski 1961 SLT (Sh Ct) 22, although from the Sheriff Court, had stood the test of time.
(b) Defender's Submissions
[70] In the event of my holding that an agreement had been reached of the type averred by the pursuer, the defender submitted that it was a sponsio ludicra. The pursuer was not a party to a gambling contract but her contract was part of the gamble. She was effectively doubling her chances of winning the National but reducing the potential winnings by one half. She thus had an intimate interest in the wager with the gaming hall. Her contract was not purely collateral or incidental to the gaming contract (Robertson v Balfour 1938 SC 207, LJC (Aitchison) at 211, Lord Wark at 222; Gloag (supra) 581-3; Mollison v Noltie (1889) 16 R 350, LJC (Macdonald) at 352, Cumming v Mackie (supra)) It was not sufficient to see whether the contract was antecedent to the gambling contract for it to be collateral. That was artificial. The real question was whether the contract had the character of a gaming contract. This one was because it influenced both parties' chances of winning (see also Knight v Stott (supra) and Calder v Stevens (supra)). Forsyth v Czartowski (supra) was wrongly decided with the Sheriff borrowing the words used in Robertson v Balfour (supra) but not actually applying them. In the circumstances, the defender's third plea-in-law concerning the unenforceability of the agreement as a sponsio ludicra should be sustained.
(c) Decision
[71] Although a sponsio ludicra is generally an obligation undertaken in jest which the parties to it do not intend should be legally binding, it has, over the years, become more of a term of art relating to gambling or wagering bargains. I agree broadly with the succinct summary of the law framed by Lord Fraser in Cumming v Mackie (supra) where he said (pp 279-280) :
"The general law of Scotland as to sponsio ludicra is now well settled and was not disputed before me. It is that an action for the recovery of a gaming debt is not maintainable against the party in the gaming contract with whom the bet or wager is made, and it makes no difference to the application of that rule that there does not exist any dispute as to who is the winner of the bet or wager, or as to the amount of his winnings - see Robertson v Balfour...Lord Justice Clerk Aitchison at 100. The law is conveniently summarised in Gloag...at pp. 581-2 where most of the Scottish cases are referred to. The rule applies so that the Court will not take cognizance of a supervening contract which is subsidiary to, and flows from the original gaming contract - see Robertson v Balfour...The Court will not enforce an agreement which is part of the gaming contract...On the other hand, if the result of the race or other event on which the wager was placed is admitted, the Court will intervene to protect the patrimonial rights of the parties. Thus an action by the winner against a stake holder is maintainable, at least where he seeks recovery of a prize in a competition involving skill or prowess or merit in performance, Graham v Pollok...Calder v Stevens...but possibly not if the bet was a mere wager...Further the Court will deal with an action which is connected with a gambling transaction if the connection is collateral or incidental, see Knight v Stott...Even an action for recovery of money lent for gambling has been held to be maintainable...provided that the action is not struck at by the statutory prohibitions..."
Although I think there may be a distinction between winning a prize in a competition involving skill on the one hand and a bet or wager on the other (see the historical survey by LJC (Moncrieff) in Calder v Stevens (supra); cf Lord Mackay in Robertson v Balfour p. 215 et seq.), that is an issue which does not arise here. The short point is that in relation to bets or wagers, of which bingo is an example, the law will not enforce them because :
"Courts of Justice were instituted to enforce the rights of parties arising from serious transactions, and can pay no regard sponsionibus ludicris" (Wordsworth v Pettigrew 1799 M 9524 quoted by the Lord President (Boyle) in Graham v Pollok (supra) at 647).
In an age when betting has become part, perhaps a significant part, of the daily life of ordinary people (notably in the form of the National Lottery) and where bookmakers' shops exist in the main streets of our towns and villages to provide betting facilities to the public, it may not be too difficult to raise questions about the validity of such a rule today. This is particularly so given the amount of Government regulation of betting and gaming and the revenue produced therefrom. Nevertheless, the general rule remains binding on me. The question is then whether the agreement, which I have found to exist between the parties, was part of a gambling contract or whether it was merely collateral or incidental to it.
[72] I am of the view that the agreement between the parties was not a sponsio ludicra in the sense set out in the authorities. It was not a wager with Mecca, who were effectively the bookmakers. Rather it was an agreement as to what would happen in the event that either party won the National. In that event, the money was to be shared equally between them. Such an agreement is purely collateral to the wager and involves no gamble in itself. Had the parties pooled their cash and bought tickets jointly then perhaps a slightly different argument might have been available even although it failed in Forsyth v Czartowski (supra). But that is not what happened here. The parties played bingo individually each using their own cards. The defender won the prize. That win was not influenced by the parties' agreement. Once the prize had been won, and no doubt paid over, the quite separate obligation arose in terms of their agreement for the defender to pay over one half to the pursuer. The fact that the source of the money to be paid over emanated from a gambling transaction between the defender and a third party did not make the parties' bargain itself part of that transaction. This is quite different to a situation, such as that in Robertson v Balfour (supra) where the contract founded upon was still one between the gambler and his bookmaker and flowed from and was subsidiary to the main wager.
[73] For these reasons, I consider that the parties entered into a contract enforceable in Scots law. I will therefore sustain the pursuer's plea-in-law, repel the defender's first to fourth pleas-in-law and grant decree for payment by the defender to the pursuer of £54,000 with interest thereon at the rate of eight per centum per annum from 21 November 1997 until payment.