Scottish Court of Session Decisions

[1] This case called before me on procedure roll at the instigation of the defenders stating three preliminary pleas, to competency, time bar and relevancy.

[2] The competency plea was hopeless and was soon abandoned. Counsel recognised that the time bar plea required an evidential investigation and accordingly my interlocutor reserves that. The only issue left therefore was that of relevancy.

[3] Having heard a short debate I allowed a proof before answer without giving any reasons. I did however withhold from probation the averment at the bottom of page 6 starting "In the circumstances it was and is a reasonable inference" to the words "vicariously liable" on the first line of page 7.

[4] Initially, counsel's attack appeared to predicated upon the view that the claim that the pursuer might have had against the architects for want of supervision was effectively trying to make the architects vicariously liable for the actions of persons other than their employees, but it soon became apparent to me that this was a wholly misguided approach. I took more or less the immediate view that the substance of the pursuer's complaint is that the flagrant professional negligence of the defenders by failing to look after his interests, compounded, it appears, by some dishonesty, lost him at least the opportunity of effecting a compromise settlement with the architect, in the role of general supervisor, in respect of the damage done to his flat while the works were being carried out in the tenement building. This was predicated upon Kyle v P J Stormoth Darling 1993 SC 57. The pursuer's pleadings are somewhat voluminous and at times convoluted, but completely encompass this basic approach. It seemed to me that I could not possibly, as a matter of relevancy, determine at this stage that this claim against the solicitors based on the loss of opportunity at least, of compromise was bound to fail. Even if, at the end of the day it might be concluded that the claim against the architects would fail, that still did not rule out the possibility of a compromise if the claim was properly pursued.

[5] In these circumstances I simply allowed a proof before answer and offered to provide reasons in writing but this offer was declined. Hence I regret the inadequacy of this note and the absence of an opinion.