Scottish Court of Session Decisions

[1] In this action the pursuers, who are a firm of solicitors, sue the defender, a former client of theirs, for payment of fees and outlays incurred in connection with an action of declarator of marriage at her instance. They aver that they acted on her behalf from 3 September 1998 until about February 2000. They aver that they carried out her initial instructions and all further instructions. They aver that the total sum due by the defender to them was £26,817.26, that she has made a partial payment of £15,750, and that the outstanding balance is accordingly £11,067.26.

[2] The defender admits that she instructed the pursuers to act as her solicitors in connection with the action of declarator. She admits that they acted on her behalf from 3 September 1998, but avers that they ceased to be instructed on 14 December 1999. She avers:

[3] In the action of declarator of marriage decree of absolvitor was granted on 18 January 2000. According to the defender she had already by then withdrawn the pursuers' instructions, whereas they maintain that their instructions only came to an end in February 2000. In my view nothing turns on that dispute, since it is clear from the pursuers' business account (No. 10 of process) that the only items relating the period after the proof was concluded on 10 December 1999 relate to the payment of a witness's expenses, reporting the Opinion of the Lord Ordinary to the defender, reporting on a motion for expenses and an additional fee, transferring papers to the defender's new agents, and making up and taxing the account of expenses.

[4] In the present action the defender was designed as formerly resident at an address in Great Western Road, Glasgow, and it was asserted that her present whereabouts were unknown. On that basis warrant was granted on 12 April 2000 for service by newspaper advertisement. The defender maintains that the pursuers were aware that the address in Great Western Road was not her residential address, and were aware of her true residential address. Nothing in my view turns on that, since the defender entered appearance and lodged defences.

[5] On 8 August 2000 on the pursuers' unopposed motion their account was remitted to the Auditor of Court for taxation. Before me the defender maintained (after altering her position more than once) that she did not receive the letter intimating that motion and sending to her a copy of the account, although she accepted that she did receive intimation of a further motion (to sist the cause pending taxation of the account) sent to the same address a few days later. She opposed the latter motion and provided written grounds of opposition, but the motion was dropped.

[6] On 13 September 2000 the cause was appointed to the By Order (Adjustment) Roll of 11 October. On the latter date the cause was appointed to the Procedure Roll on the pursuers' second plea-in-law, which is a plea to the relevancy of the defences. On 7 November the pursuers lodged in process a Note of Argument (No. 12 of process) attacking the relevancy and specification of the defender's averments about the pursuers' failure to carry out certain work. The defender denied that she received intimation of that Note of Argument.

[7] On 4 January 2001 the Auditor of Court posted to the defender at 21 Cleveden Drive, Glasgow, G12 0SD, by recorded delivery post a Notice of Diet of Taxation intimating that the diet of taxation was to take place on 22 January 2001 at 11.30 a.m. The defender accepted that that was her residential address at that time (as it still is). Nevertheless, the recorded delivery envelope was returned dated 5 January 2001 and marked "addressee unknown". The pursuers wrote to the defender on 11 January 2001 by recorded delivery post (the recorded delivery receipt in respect of which was exhibited to me) enclosing a copy of their copy of the Notice of Diet of Taxation. According to the pursuers, the recorded delivery envelope was not returned. The defender, however, maintained that she did not receive that letter either.

[8] The defender did not attend the diet of taxation. The account was taxed at the sum of £24,116.75 (see the Auditor's Report No. 10A of process).

[9] When the case called before me on the procedure roll, Mr Hanretty, for the pursuers, accepted that in light of the taxed amount of their account, the pursuers' claim required to be restricted to £8416.75 (i.e. the amount of the taxed account (£24,116.75) less the admitted payment to account (£15,750)).

[10] Mr Hanretty's submission was that the defender had stated no relevant and sufficiently specific defence to the pursuers' claim for payment of their account. He drew my attention to certain aspects of the Opinions of the Lord Ordinary and of the Extra Division in the action of declarator, but it seems to me that nothing in the present action turns on what was said in those Opinions. He submitted that the defender's averments of alleged failures on the part of the pursuers to do certain things on her behalf were seriously lacking in specification, and afforded the pursuers no fair notice of what they were said to have failed to do. Moreover, he submitted, even if those averments of failure were true, they did not constitute a relevant defence to the present action. The pursuers only sought payment for work they had in fact done. Complaints that they had not done other work were irrelevant to their entitlement to payment for what they had done. There was no counterclaim for damages, and no specific averment of professional negligence. There was no suggestion that the account included charges for work that had not been done, or that the charges for work dome were excessive. Mr Hanretty therefore moved me to sustain the pursuers' second plea-in-law, repel the defences, and grant decree for the sum mentioned in paragraph [9] above.

[11] The defender drew to my attention the fact that she had complained to the Law Society of Scotland about the pursuers' conduct of her case, that her grounds of complaint had been put to the pursuers for comment, and that they had provided their observations on them. As I understood her, the complaint had not been processed further because proceedings were still pending. It was not clear to me whether the proceedings to which she referred in that connection were the action of declarator (in which the Opinion of the Extra Division refusing the reclaiming motion was issued on 25 May 2001) or the present action. She said that she had spoken to the pursuers and to the Keeper of the Rolls to find out what the diet on the procedure roll was about, but had not understood that the case might be decided at this stage. She said that she firmly believed that, if the action of declarator had been conducted in accordance with her instructions, that action would have been successful. She indicated that she intended to intimate a motion to sist the present action to enable her to apply for legal aid. She had not yet engaged a solicitor for that purpose. It appeared that what she wished to do was raise an action of damages against the present pursuers in respect of their alleged failure to carry out her instructions. What she wished to do in relation to the present action was to improve the specification of her complaints about the pursuers' failure properly to implement her instructions.

[12] In my opinion, the defender has not stated any relevant defence to the pursuers' claim for payment of the outstanding balance of their taxed account of expenses.

[13] I note that nothing is said in the defences to suggest (i) that the account includes any item in respect of work that was not in fact done, or (ii) that any item has been over-charged. That being so I do not consider that anything turns on the defender's allegation that she did not receive notice of the diet of taxation.

[14] The only line of defence stated by the defender relates to alleged failure on the pursuers' part to carry out certain further work, over and above that which they did carry out and for which they charge in their account. There is, in my view, force in Mr Hanretty's criticism of the specification of those allegations, but that is not the basis on which I proceed. The more fundamental flaw in the defender's pleadings, which would not be cured by improving the specification of the allegations contained in the defences, is that the pursuers' alleged failure to carry out other work has no bearing on their entitlement to charge fees in respect of the work that they did do. No claim for damages has been made, in respect of which a right of retention might have been asserted.

[15] If, as she indicates, the defender wishes to take proceedings against the pursuers for damages for breach of contract or professional negligence, she is free to do so. She has not, however, at present stated any relevant defence to this action. She has, in my view, had ample time to do so. It would not, in my view, be appropriate to refuse the pursuers the decree they seek on account of the defender's wish to seek legal aid for further proceedings. I am therefore of opinion that the defences should be repelled and decree granted de plano for the amount of the outstanding balance of the taxed expenses.

[16] I shall therefore sustain the pursuers' second plea-in-law, repel the defences and grant decree de plano for the restricted sum of £8416.75, with interest thereon at the rate of eight per cent a year from the date of decree until payment. I shall reserve the question of expenses, since I heard no submission on that matter.