Scottish Court of Session Decisions

[1] In this action the pursuers seek declarator that they are entitled to payment under and in terms of two separate contracts which they maintain were constituted by two sets of correspondence passing between the parties in the course of 1997 and 1998. The contracts said to have been so constituted relate to claims made by the pursuers in respect of fishing losses allegedly sustained by them following the foundering of the Liberian tanker "Braer" off the coast of Shetland on 5 January 1993. For present purposes the parties are agreed that no distinction falls to be drawn as between the two sets of correspondence and it will accordingly suffice to set out the full terms of what was referred to as the "first offer" from the defenders, namely a letter dated 2 September 1997. The letter in question is in the following terms:

[2] What was referred to as the "second offer" was sent by the defenders only two days later and both offers were purportedly accepted on 18 June 1998.

[3] The Lord Ordinary decided that the "first offer" did not impose a time limit, as such, and that accordingly the real question, as regards both offers, was whether they had been accepted "within a reasonable time". In the event he answered that question in the negative and dismissed the action.

[4] It is unnecessary to set out the Lord Ordinary's reasoning because most of it was accepted by counsel for the pursuers as entirely valid. Indeed, it was only on one narrow front that he sought to attack it. Before the Lord Ordinary this was apparently referred to as the "pro-rating" point but, as so often happens, the argument before us took a rather different shape from that which was presented to the Lord Ordinary. So far as the argument which we heard is concerned, it depended entirely on a construction of the paragraph which reads:

[5] Counsel for the pursuers submitted that this paragraph meant that the writer would revert to the pursuers giving them more information regarding the total value of all outstanding claims for compensation (whether or not accepted or judicially determined as admissible) so that the pursuers could themselves - to help them decide whether or not to accept the offer - make some sort of estimate of any pro rata restriction which might be applicable. There was no suggestion that the information referred to by counsel was ever made available at a later stage but, nonetheless, it was this paragraph which, according to counsel, made it reasonable for his client to wait more than nine months before purportedly accepting the offer or, rather, offers in question. If, however, the paragraph did not bear the construction attributed to it by counsel for the pursuers, then it was frankly conceded by counsel that these purported acceptances came too late and that the Reclaiming Motion failed.

[6] In our opinion, there are a number of reasons why the only argument advanced in this Reclaiming Motion is unsound. In the first place, bearing in mind that the casualty had occurred some four and a half years earlier, it is difficult to suppose that many, if any, new claims had still to be intimated to the defenders, let alone within the approximate timescale of 2-3 weeks. In the second place, it can be seen from the earlier parts of the letter that what the respondents were lacking were the "full details of (the) claims", and it was in that respect that it was envisaged that more accurate figures might at some stage become available. Thirdly, it is apparent that some two years previously the defenders' Executive Committee had ceased paying out even agreed claims until the extent of any necessary pro rata restriction was known. For all these reasons we consider it clear that the paragraph in question relates, not to the provision of further information about the total value of unassessed claims but, in due course, to giving the pursuers some indication of the extent of any pro rata restriction and also of when they might expect actual payment, in whole or in part, of their claim as agreed. What, however, was sought was an acceptance of the gross value of that claim so that it, along, no doubt, with the rest, could be used to calculate the extent of any excess beyond the defenders' limitation figure. In short, as was suggested by Lord McCluskey in the course of the hearing, the exercise being carried out by the defenders was analogous to an adjudication of claims by a Trustee in Bankruptcy and, read in that light, the paragraph in question, far from envisaging a delay in response, in fact suggests a certain urgency.

[7] For all the above reasons we are satisfied that there is no merit in this Reclaiming Motion. We shall accordingly refuse it and adhere to the interlocutor of the Lord Ordinary dismissing the action.