Scottish Court of Session Decisions

V P Packaging Ltd v. ADF Partnership & Anor [2002] ScotCS 26 (29th January, 2002)

OUTER HOUSE, COURT OF SESSION
A52/96	OPINION OF LORD WHEATLEY in the cause V. P. PACKAGING LIMITED Pursuers; against THE ADF PARTNERSHIP and ANOTHER Defenders:   ________________

 

 

Pursuers: Di Rollo (Brodies - for Hamilton Burns & Moore, Glasgow)

Defenders: R. S. Keen, Q.C., Simpson & Marwick, W.S.

29 January 2002

1. The procedural history of this cause is somewhat complex. The case, which is a claim for damages based on alleged negligence, was concerned with events which took place in 1990. Proceedings were raised against four defenders by the pursuers in Glasgow Sheriff Court in 1993. In 1996 the cause was remitted to the Court of Session. The record was closed in May 1996. After sundry procedure the action was sent to the procedure roll on 27 May 1997. On 21 May 1997 the Solicitor-Advocate representing the pursuers lodged a minute of abandonment against two of the defenders, namely Ladbroke's Retail Parks Limited and Messrs Condall Johnston & Partners, who were at that time the first and second defenders respectively in the case. On 21 May 1997 therefore an interlocutor was pronounced in respect of the minute of abandonment finding the pursuers liable to the then first and second defenders in the expenses of the action to date and remitting an account thereof to the Auditor of Court to tax and to report. The defenders were appointed to lodge their accounts with the auditor within four months of the date of the interlocutor. The first defenders (who are the party who have enrolled the present motion) intimated their account of expenses to the pursuers on 1 July 1997 and, it was said, in accordance with normal practice invited the pursuers to agree these accounts. Revisals to the accounts were intimated to the pursuers on 9 September 1997 and the revised accounts were lodged in process in accordance with the interlocutor of 21 May 1997. A diet of taxation was fixed for 24 October 1997 but this was discharged and a fresh diet was fixed for 28 January 1998. On 27 January 1998, the day before the new diet of taxation, the law accountants acting for the solicitors who represented the pursuers agreed on their behalf the defenders' account of expenses, and therefore the diet of taxation for the following day did not proceed. These expenses were however unpaid and on 15 April 1998 the first defenders obtained decree for the agreed sum of expenses. These expenses were not in fact paid until 30 September 1998. In the meantime the pursuers had amended their pleadings to exclude any reference to the first and second defenders from the closed record in the form of fourth and third defenders became the first and second defenders respectively. By joint minute dated 14 May 1998 authority was interponed to a joint minute between the pursuers and the former third and fourth defenders which assoilzied those defenders from the conclusions of the summons. The motion presently before the Court does not concern those defenders.
2. The motion now enrolled by Ladbroke's Retail Parks Limited (hereinafter referred to as the first defenders) is simply for absolvitor. In terms of the minute of abandonment lodged on 21 May 1997 it was stated that the pursuers "abandoned the present action in so far as directed against the first defender under Rule 29.1(1)(b) of the Rules of the Court of Session 1994 and seeks decree of dismissal." The relevant terms of Rule of Court 29.1 are as follows:

(1) A pursuer may abandon an action by lodging a minute of abandonment in process and -

(a) consenting to decree of absolvitor; or

(b) seeking decree of dismissal.

(2) The Court shall not grant decree of dismissal under paragraph (1)(b) unless

(a) full judicial expenses have been paid to the defender .... within 28 days after the date of intimation of the report of the Auditor on the taxation of the account of expenses ....

(3) If the pursuer fails to pay the expenses referred to in sub-paragraph (a) of paragraph (2) to the party to whom they are due within the period specified in that sub-paragraph, that party shall be entitled to decree of absolvitor with expenses.

The first defenders' submission therefore was that absolvitor was now the only course open to the court if the case was to be finally determined. The expenses had not been paid within 28 days of the decree which they had obtained on 15 April 1998. No taxation of their account had taken place, and so no Auditor's report could be intimated. Accordingly the pursuer could not now move for dismissal in terms of the Rules of Court. No motion for abandonment in terms of the minute had been made, or could have been made, and is not made now. It was essential that the requirements of the Rules of Court be strictly observed, if the pursuers wished to obtain the benefit of the Rules. Apart from a taxation by the auditor or agreement by the parties, there was no method by which the amount of expenses could be fixed and decree pronounced. The key issue was simply to determine a mechanism to fix the expenses; once that had been done, - by whatever means, - the defenders had 28 days too settle the expenses in terms of the Rules, otherwise they lost their entitlement to seek dismissal. In Lee v Pollock 1906 8F. 857 it was held that it was competent for a pursuer to withdraw a minute of abandonment; thereafter the remedy for the defenders was to seek absolvitor, and for the pursuers it was to show that they were acting in good faith and to seek leave to continue their action on such conditions as the court thought fit. Counsel maintained that in the present case the pursuers were not able to claim that they were acting in good faith because they had raised another action. From all of this counsel for the first defender concluded that when dismissal was not appropriate, absolvitor was the proper solution. If absolvitor was not to be granted in terms of the Rules, it should be granted at common law.

3. For the pursuer, counsel argued that for any ultimatum procedure, the ultimatum had to be clear. In the present case the ultimatum contemplated by the rules had never been brought into being. The rule only envisages an ultimatum when the report from the Auditor is intimated to the pursuers. If there is no particular time limit then the defenders' remedy was to move for absolvitor and expenses at the same time. The present Rule of Court does not cover the position where parties agree on expenses and do not go to taxation. Even if the parties agree on expenses there still has to be a report from the Auditor otherwise the pursuer could never obtain the advantage of obtaining dismissal in terms of Rule 29(1)(a) instead of absolvitor. The action should therefore be dismissed. Although this means that the pursuers would have the right to raise a fresh action, this would not prejudice the first defenders. If the first defenders are right then that means that the pursuers could never put themselves in the position of asking for dismissal. As a secondary position, pursuer's counsel asked that the Court should therefore exercise its dispensing power in terms of Rule of Court 2.1 and allow the case to be dismissed.
4. I have come to the conclusion that the defender's arguments in this matter are in principle to be preferred. Counsel for the petitioners accepted, at least by implication, that he could only obtain dismissal in terms of the Rules of Court, other than by some exercises of the court's discretion. In terms of the Rules of Court, dismissal can only be obtained if certain requirements are observed. If these requirements are not satisfied, then it simply follows that dismissal should not be granted in terms of the rules. It is I think evident that the terms of Rule of Court have not been obtempered by the pursuers in the present case. It is correct that Rule of Court 29 makes no provision for the situation where parties have agreed on the expenses of the case as opposed to having those expenses taxed by the Auditor of Court. So much must be obvious to those who have to work with these rules. The only conclusion that can be drawn from this is that a pursuer who agrees to settle expenses without reference to the Auditor of Court must be presumed to have abandoned any right to ask for dismissal in terms of the rules. I agree with the submission by counsel for the defender that the decision in Lee v Pollock reflects the idea that dismissal, which carries the right to raise a new action, is a remedy which has to be acquired by taking certain steps either at common law or in terms of the rules. These steps have not been taken here. If dismissal is not available then the only appropriate course is for absolvitor. I do not think that there is any lack of clarity in the rule. Nor do I see any point in the course suggested at one stage by counsel for the pursuers that following the agreement on the expenses it might have been open to the first defenders to ask the Auditor of Court to make a report on the agreed expenses. I do not see that it would be appropriate to ask the Auditor to issue a report on such an agreement when he has had absolutely nothing to do with the settlement of the expenses. Nor do I think that there is any room in the present circumstances for exercising a dispensing power to allow the pursuers to escape from the consequences of their failure to consider properly the requirements of the rule. The terms of Section 2.1 make it clear that such dispensing powers are only available when a party has failed to comply with a provision in the Rules caused by a mistake, oversight or other excusable cause. Here what the pursuer did, in agreeing expenses, was plainly considered and deliberate. In all the circumstances therefore I have reached the conclusion that dismissal is impossible in this case. While I do not think that the defender can claim a right to absolvitor by virtue of the terms of Rules of Court 29.1 for broadly similar reasons, I am satisfied that they do need to do so, and that they are entitled to the remedy which they seek at common law. I should make it clear that even if I am wrong, and that the matter is open to the discretion of the Court, in terms of Rule of Court 2.1, the outcome would still have been the same. The pursuers cannot in my view in the present circumstances make a case for exercising any available discretion in their favour. They appear deliberately to have rejected the opportunity of obtaining a dismissal in terms of the Rules of Court; and further by the significant delay in meeting the expenses found against them they cannot be said to have adopted the spirit of those rules. I therefore grant the first defenders' motion and assoilzie them from the conclusions of the summons.