Scottish Court of Session Decisions

[1] The respondents in this reclaiming motion are a firm of solicitors who acted for the reclaimer in an action of declarator of marriage at her instance between September 1998 and February 2000. The reclaimer was unsuccessful in the action. In this action, the respondents seek payment of the outstanding balance of the taxed account for work done by them on the reclaimer's behalf. The amount outstanding has now been restricted to £8,416.75. The full history of the procedure in this action is set out in the opinion of the Lord Ordinary issued by him following a procedure roll debate. The opinion is dated 15 June 2001. On that date, the Lord Ordinary sustained the respondents' plea to the relevancy of the defences and granted decree for the restricted sum. The defender has reclaimed.

[2] The Lord Ordinary dealt with a number of incidental matters which were not reverted to in the reclaiming motion. The central question for him was whether a relevant defence had been stated. The only line of defence put forward was related to failure on the part of the respondents to do further work on behalf of the reclaimer which, it is suggested, would have had a material effect on her chances of success in the action of declarator. The reclaimer did not dispute that the items of work charged for in the taxed account had been carried out or that the sums charged, as taxed, were reasonable. The material part of the reclaimer's defence is found in Answer 2 in which she avers inter alia:

[3] The Lord Ordinary says in his opinion that in the debate before him these averments were criticised as lacking in specification. He says that in his view there was force in that criticism but he did not proceed on that basis. The more fundamental flaw on which he proceeded was that the failure, if any, on the part of the pursuers to carry out other work had no bearing on their entitlement to charge fees in respect of the work that they had done. He points out that no claim for damages had been made against the pursuers and there were no averments of breach of contract or professional negligence. On that basis, he held the defences to be irrelevant.

[4] In the reclaiming motion, the reclaimer, who appeared in person, submitted that she had drawn attention to failures on the part of the respondents to carry out work necessary for the proper conduct of the action of declarator and that these failures contributed to the failure of that action and so rendered the work which the respondents had done futile. She submitted that the Lord Ordinary had failed to take into account the pursuers' duty to ensure that all the necessary work was done to support the action and to take account of the significance of that failure to the reclaimer. The idea that the respondents should be entitled to payment of fees for work which had been rendered pointless by their own failure to carry out appropriate and necessary work was, in her submission, untenable.

[5] In our view, the Lord Ordinary reached the correct result. We prefer, however, to proceed on the ground of lack of specification rather than the ground on which the Lord Ordinary proceeded. As we have noted, the reclaimer appeared on her own behalf and we heard no submissions, and no reference to authority, in relation to the question whether a failure on the part of solicitors to carry out necessary work might render a claim for work actually done unenforceable. What is abundantly clear is that the averments of the defender and reclaimer are wholly lacking in specification. There is no indication whatever of the nature of the evidence which might have been obtained, the witnesses who might have been precognosced, but were not, nor any of the other matters of which notice would require to be given to the defenders and respondents. In these circumstances, we shall refuse the reclaiming motion and adhere to the decision of the Lord Ordinary.