Scottish Court of Session Decisions

Harris v. Douglas & Ors [2003] ScotCS 32 (14 February 2003)

OUTER HOUSE, COURT OF SESSION
A423/00	OPINION OF LADY PATON in the cause CHARLES SIDNEY JAMES HARRIS (AP) Pursuer; against ROBERT ROBERTSON DOUGLAS AND OTHERS Defenders:   ________________

 

 

Pursuer: M.H. Clark, Advocate; H.B.M. Sayers

Defenders: Lindsay, Advocate; A. & W. M. Urquhart (for Ogilvie Cowal, Solicitors, Dundee)

 

14 February 2003

Claim for recompense for services rendered to elderly couple

1. The defenders are the executors of the late Mr. and Mrs. Sale, who lived at Mount Place, 18 Mansfield Place, Scone, Perthshire. In this debate, the defenders seek dismissal of the pursuer's claim against the executry estate for recompense for care services rendered to Mr. and Mrs. Sale in the years before their deaths.
2. The pursuer avers that he had known the Sales since he was a child. In the 1980s, the pursuer was living in Surrey and working as an artist. The Sales were living at the Bookham Grange Hotel, Bookham, Surrey. In 1988, the Sales moved to a house known as Mount Place in Scone. The pursuer avers that they invited him to live with them in Scone in order to care for them in their old age. The pursuer did so, in the circumstances outlined in the pleadings. He was accompanied by his girlfriend Ms. Day.
3. At pages 7E to 9B of the Closed Record, the pursuer avers:

"Mr. and Mrs. Sale stated to the pursuer at the time of their request of him in or around 1988 and at many times between 1991 and 1996, that the pursuer was to be recognised for his care of Mr. and Mrs. Sale by arrangements to be made by them to enable the pursuer to purchase the property at Mount Place, 18 Mansfield Road, Scone, upon the death of Mr. or Mrs. Sale whichever was the later to occur. In or around November 1994 Mr. and Mrs. Sale convened a meeting with the pursuer and the said Ms. Day to discuss the concern held by Mr. and Mrs. Sale at the financial cost to the pursuer and Ms. Day by virtue of their involvement in providing care and services for Mr. and Mrs. Sale. This meeting took place within the property at Mount Place, 18 Mansfield Road, Scone. Mr. Sale stated to the pursuer that it was his intention and that of his wife, Mrs. Sale, that after their deaths the pursuer be provided with sufficient funds to enable the pursuer to purchase the property at Mount Place, 18 Mansfield Road, Scone in recognition of the care provided by the pursuer and Ms. Day to Mr. and Mrs. Sale. Mr. Sale stated that the pursuer was to be given a piece of land adjacent to property at the Bookham Grange Hotel, Bookham, Surrey owned by Mr. Sale in addition to a sum of money all to a total value of £100,000. Mr. Sale stated that the piece of land and the sum of money would provide the pursuer with sufficient funds to enable him to purchase the property at Mount Place, 18 Mansfield Road, Scone, upon the death of Mr. and Mrs. Sale whichever was the later to occur. The stated intention by Mr. Sale was made in the presence of Mrs. Sale with which stated intention Mrs. Sale indicated her agreement. At this meeting Mr. Sale gave the pursuer a document which Mr. Sale advised the pursuer was the Title Deeds to the piece of land adjacent to Bookham Grange Hotel, Surrey. The said document was tied with red ribbon. The pursuer did not examine the document until after the death of Mrs. Sale in 1997. The pursuer was under the belief that the delivery of the document by Mr. Sale to him effected transfer of the interest of the said Mr. Sale in said piece of land to him. Mr. Sale died in 1995. Mrs. Sale died in 1997. The pursuer cared for Mr. and Mrs. Sale until their deaths."

4. The pursuer further avers that following Mrs. Sale's death, he discovered that the bundle of documents did not transfer title to the plot of land to him. He found that they consisted of a report on title, an architect's drawing, a photocopy plan, a location plan, two copy letters, and a copy Deed of Grant between the National Trust and J. Sale. The pursuer also learned that Mrs. Sale had bequeathed him only £5,000 in her will. Ms. Day was also to receive a legacy of £5,000. Confirmation to Mrs. Sale's estate, number 6/1 of process, revealed the total value of the estate as £205,039.21. The pursuer took advice, and on 22 February 2000 the present action seeking recompense for his services was served on the defenders.

Defenders' submissions

Remedy of recompense not available to the pursuer

5. Counsel for the defenders submitted that, taking the pursuer's pleadings pro veritate, the pursuer had a valid and enforceable contract with the Sales. Recompense was an equitable remedy available only where the pursuer had no other remedy. In the present case, the pursuer could seek to enforce the contract. Accordingly he could not resort to a claim for recompense. Reference was made to N.V. Devos Gebroeder v Sunderland Sportswear Ltd 1990 S.C. 291, at pages 296-297, 300-301, 306-308; Dollar Land (Cumbernauld) Ltd v C.I.N. Properties Ltd 1998 SCLR 929, particularly page 933. Article 2 of Condescendence revealed the date of the contract as November 1994. The pursuer's understanding was that the land was being transferred to him there and then. Documents numbers 6/4 to 6/11 of process, including a report on title and a plan, were handed over to the pursuer.
6. The pursuer's position appeared to be that there was a contract, but that he was unable to enforce it. The pursuer cited the following reasons: (a) it was an obligation relating to land which had not been recorded in writing; (b) both the land involved, and the date of transfer, were vague and ill-defined. But it was the defenders' contention that these reasons were lacking in merit:
7. Obligation not recorded in writing: Counsel for the defenders accepted for the purposes of the debate that an agreement, relating to the transfer of land in England, entered into in Scotland in November 1994 (i.e. prior to the coming into effect of the Requirements of Writing (Scotland) Act 1995), was an obligatio literis, requiring to be constituted in writing. Nevertheless, counsel submitted that any informality or lack of writing had been remedied by homologation and rei interventus. Reference was made to Mitchell v The Stornoway Trustees 1936 S.C. (H.L.) 56, at pages 63-64. All the caring services had been rendered after the date of the agreement. The pursuer averred at page 18C of the Record:

"The pursuer would not have provided the care and services to the late Mr. and Mrs. Sale had it not been for the belief that he was to be provided for as hereinbefore condescended upon."

The actings which followed the agreement were evidence of the intention of the parties to be bound by the contract. The actings of the parties and the surrounding circumstances had to be assessed objectively: cf. Bell's Principles, sec.26, quoted in Mitchell v The Stornoway Trustees, cit. sup. at page 63. In the particular circumstances of the present case, it was not necessary that the actings were unequivocally referable to the agreement, as the pursuer had expressly averred at p.18C that he acted as he had in reliance upon the informal contract. If the defenders' contention were correct, there was a Scottish contract giving the pursuer a contractual right to require the executors to convey the land in England to him. In any event, the pursuer had been promised land and a sum of money bringing the total up to £100,000: accordingly if the conveyance of the land could not be achieved, he should receive £100,000.

8. Land and date of transfer"vague and ill-defined": Counsel submitted that these averments contradicted the pursuer's assertion that there was a contract. If there was no consensus in idem, there was no contract: yet the pursuer averred at page 34E in Article 5 of Condescendence that "the pursuer has no enforceable contractual remedy available to him". Because of the inherent contradictions, the averments should be excluded from probation. The averments were not only contradictory in law, also contradictory as to fact. In relation to the extent of the plot of land, there was at page 9D of the Record a reference to a photocopy plan and a location plan handed over at the time. In relation to the date of transfer, the pursuer averred that he thought that he was acquiring the land there and then - i.e. November 1994.
9. Counsel invited the court to conclude that the case properly concerned an enforceable contract. The averments relating to recompense were irrelevant. The defender's first plea-in-law should be sustained, and the action dismissed.

Quantum

10. Counsel for the defenders criticised the pursuer's pleadings relating to quantum. The pursuer had incorporated two reports relating to care services, numbers 6/19 and 6/20 of process. Counsel referred to Barton v William Low & Co. Ltd, 1968 S.L.T. (Notes) 27, and submitted that (1) the reports were expressions of opinion and judgement, and were not restricted to facts; (2) it was not explained in the reports why one method of valuation was chosen rather than another; (3) there was much in the reports which had no intelligible meaning in the present case; (4) certain passages had nothing to do with the present case.
11. Counsel then elaborated on these submissions. It was Mr. Davies' function to put a value on the services which the pursuer said that he had performed. The reports should have been based upon what the pursuer actually said he did. But Mr. Davies had reached a valuation on the basis of his own assumptions about how much time the pursuer had spent rendering care services. Mr. Davies had speculated and estimated. His reports were in effect works of fiction. Further, certain items were poorly specified: for example, it was not clear what was involved in "maintenance". There was a difference between, for example, sweeping the garden path, and replacing the tiles on the roof. If Mr. Davies did not know what maintenance had been carried out, how could he properly value the services. Mr. Davies appeared to have made no discounts in rates to reflect the fact that the pursuer was not working for an agency. There should be discounts reflecting the absence of a percentage commission and national insurance contributions. Because it was impossible for the defenders to tell whether the figures did, or did not, exclude national insurance contributions, agency commission, VAT, or income tax, the figures were meaningless. The reports were largely works of fiction, based on assumptions and guesses. Because Mr. Davies had not been given the necessary information, his valuations were built on foundations of sand. Mr. Davies had also failed to take into account the fact that Ms. Day, the pursuer's girlfriend, had contributed certain services. Further, the rates which Mr. Davies had used were questionable. The pursuer was not a qualified tradesman such as a painter and decorator. The services of such tradesmen were more valuable than those of an amateur such as the pursuer. Handyman rates would have been more appropriate. Finally, Mr. Davies offered several valuation models, and had then selected one. There was no explanation why a particular model had been chosen.
12. As the pursuer had failed relevantly to quantify his claim, the first plea-in-law should be sustained, and the action dismissed.

Prescription

13. Counsel referred to section 6 and Schedule 1 of the Prescription and Limitation (Scotland) Act 1973, and to N.V. Devos Gebroeder v Sunderland Sportswear Ltd 1990 S.C. 291. He submitted that the five-year prescription applied, and that the quinquennium began to run when the obligation became enforceable. The obligation to make recompense became enforceable as soon as the Sales became lucrati, and they became lucrati at the time the services were rendered. If a proof before answer were to be allowed, it should be allowed only in respect of services rendered after 22 February 1995, the summons having been signetted and served on the defenders on 22 February 2000.
14. Accordingly, esto the defenders' first plea-in-law were not to be sustained and the action were not to be dismissed, the defenders' second plea-in-law should be sustained by excluding from probation (1) the first conclusion for £186,878; (2) the word "Alternatively" at the beginning of the second conclusion; (3) the averments from "Reference is made to a report by Peter Davies" to and including the words "Said sum is the sum concluded for in the alternative." in Article 4 of Condescendence at pages 29A to 30E of the Closed Record as further amended dated July 4, 2001, number 19 of process; and (4) the word "further" where it appeared at the end of the last line at page 30E of that Record. Also for procedural completeness, the pursuer's fifth plea-in-law should be repelled.

 

Pursuer's submissions

15. At a continued diet of debate, counsel for the pursuer responded to the defenders' criticisms.

Remedy of recompense available to pursuer

16. Counsel submitted that recompense was an equitable remedy. The particular circumstances in every case had to be considered. The courts were unwilling to be restrictive in their approach, or to lay down absolute rules: Stair Encyclopaedia, Vol.15, paragraph 63; Varney (Scotland) Ltd v Lanark Town Council, 1974 SC 245, Lord Fraser at pages 259-260. Even where there was an accessible remedy which was not hopeless or forlorn, in certain special and strong circumstances the pursuer might yet seek recompense: City of Glasgow District Council v Morrison McChlery & Co 1985 S.C. 52, Lord President Emslie at page 64; Lawrence Building Co. Ltd v Lanark County Council, 1978 SC 30, at pages 38-39, and 43.
17. In the present case, it was far from clear that there was an enforceable contract. The transaction in November 1994 certainly demonstrated that the pursuer had not intended to make a gift of his services. But the discussion and transfer of documents had not been followed by, for example, a visit to the plot by either the pursuer, or the Sales, or both; by any acknowledgement on site by words or deeds that the plot had become the pursuer's; or by any physical actings or works performed on the plot. The pursuer had simply begun caring for the Sales, and there had been no actings specifically relating to the plot of ground. Accordingly it was not clear that the unwritten agreement had been perfected by either rei interventus or by homologation. Any actings which had followed upon the verbal discussion could not be said to be unequivocally referable to an agreement to transfer a plot of ground to the pursuer. The care services rendered by the pursuer could not be used to perfect the verbal agreement.
18. Counsel accordingly submitted that the pursuer had no other remedy. Even if the court were not satisfied that the pursuer had no other remedy, special and strong circumstances existed such that the pursuer might still be entitled to recompense. A proof before answer should be allowed.

Prescription

19. After some discussion concerning policy considerations, in particular, whether parliament could have intended someone such as the pursuer to raise actions for recompense at regular intervals in order to recover for services rendered, counsel referred to section 6(4) of the Prescription and Limitation (Scotland) Act 1973, and submitted that the pursuer had been labouring under a misapprehension or error, namely that he would receive a certain consideration for his care services. That misapprehension or error had been caused by the behaviour of the Sales. Only upon the death of Mrs. Sale did the pursuer become aware that there might be some doubt as to whether he was to receive the expected consideration. Mrs. Sale died on 29 October 1997. The summons was served on the defenders on 22 February 2000. The pursuer's claim was accordingly not affected by prescription.

Quantum

20. Counsel for the pursuer referred to Jamieson v Jamieson 1952 S.C. (H.L.) 44, and McMenemy v James Dougall and Sons Ltd 1960 S.L.T. (Notes) 84, and submitted that the purpose of pleadings was simply to give fair notice. The reports (numbers 6/19 and 6/20 of process) lodged by the pursuer, and incorporated in the pleadings, gave the defenders such fair notice. The pursuer had not kept a diary of the services which he had rendered, day by day, year by year. The reports assisted in quantification or valuation of services which had to be described in a general way as a consequence of the passage of time. Of the different approaches suggested in the report, the pursuer had opted for the lower figure. Barton v William Low & Co. Ltd 1968 S.L.T. (Notes) 27 could be distinguished, as in that case the report related to the merits of the case, not simply valuation; also the report did not relate to the pursuer alone. By contrast, the reports in the present case referred exclusively to the pursuer and the services which he had rendered, and sought to provide assistance with valuation. A proof before answer should be allowed.

 

Defenders' reply

21. In relation to prescription, counsel for the defenders submitted that, taking the pursuer's averments pro veritate, the pursuer could with reasonable diligence have discovered as early as 1994 that no land had been validly transferred to him. The pursuer did not aver that there was some suspensive condition causing him to do nothing until the Sales' deaths. On the contrary, he averred that he thought that the land had been transferred to him in 1994. With reasonable diligence, he could have checked the documents which he had been given, and could have sought advice from a solicitor. On his own averments therefore the pursuer could not satisfy section 6(4).
22. In relation to the existence of a remedy other than recompense, counsel submitted that the agreement in November 1994 had been a fairly simple contract, not a complicated or difficult agreement. It was an agreement for £100,000 in exchange for services. Any problem with the part of the contract relating to land did not detract from the simplicity or enforceability of the contract for £100,000.

 

Opinion

Whether remedy of recompense available to the pursuer

23. In Article 2 of Condescendence, the pursuer describes the meeting in November 1994, apparently resulting in an agreement whereby the pursuer, in consideration for his caring for the Sales, was given a plot of land, and would, on the death of the longer liver of Mr. and Mrs. Sale, receive a sum of money which, when added to the plot of land, would amount to £100,000 in total. In Article 5 of Condescendence (at page 34D-E of the Closed Record) the pursuer avers that he "has no enforceable contractual remedy available to him".
24. I am satisfied that the factual averments, taken with the averment at page 34D-E, are sufficient to entitle the pursuer to an inquiry into the facts, for the following reasons:
25. It is not clear to me at which date the plot of land was to be valued, in what way, and by whom. The value of the plot would affect the sum of money appropriate to bring the total to £100,000. Possible dates for valuing the plot might include the date of the meeting in November 1994, or the date of Mrs. Sale's death in October 1997. The value of the plot of land might have altered considerably between these two dates. It seems to me therefore that, despite the parties' apparent intention, they failed to reach consensus in idem in relation to at least one essential element of the contract, and that as a result, no contract was constituted.
26. Even if, contrary to the above, a court were to hold that there had been sufficient agreement on the essential elements such that a contract had been constituted, I do not accept that the agreement could be satisfied by payment of £100,000. The specific terms of the agreement relate to transfer of a plot of land with money in addition. The transfer of the land appears prima facie to be a fundamental part of the agreement, not severable from the rest of the agreement. Both counsel accepted for the purposes of the debate that an agreement reached in Scotland in November 1994 (i.e. prior to the coming into effect of the Requirements of Writing (Scotland) Act 1995), relating to the transfer of land in England, was an obligatio literis, and accordingly was not enforceable unless there were actings following upon it which could amount to rei interventus or homologation. Where counsel differed, however, was that counsel for the defenders contended that there had been such actings, whereas counsel for the pursuer contended that there had not.
27. On the basis of the averments, I agree with counsel for the pursuer. I can see no averments describing actings which might be regarded as unequivocally referable to an agreement to transfer the plot of land to the pursuer. There are no averments describing subsequent actings of the Sales which could be regarded as unequivocally referable to a transfer of land in England to the pursuer. As for the pursuer's care services for the Sales, these are not in my view sufficiently referable to any agreement about a transfer of land in England. Actings on his part which could be regarded as unequivocally referable to a transfer of land to him might include his visiting the plot and making physical alterations to it, for example fencing it, levelling it, or preparing foundations for a building. But it is insufficient in my view for the defenders to rely upon the care services together with the pursuer's averment at page 18C of the Record, that he "would not have provided the care and services to the late Mr. and Mrs. Sale had it not been for the belief that he was to be provided for as hereinbefore condescended upon".
28. Accordingly I agree with counsel for the pursuer that if a contract were indeed constituted in November 1994, it appears prima facie to be unenforceable.
29. I am therefore satisfied that the pursuer is entitled to a proof before answer in respect of his claim for recompense.

Whether any part of the pursuer's claim has prescribed

30. On the basis of the pursuer's pleadings, it is at least arguable that the terms of section 6(4) of the Prescription and Limitation (Scotland) Act 1973 may be relevant. That subsection provides:

"In the computation of a prescriptive period in relation to any obligation for the purposes of this section -

1. any period during which by reason of -
1. fraud on the part of the debtor or any person acting on his behalf, or
2. error induced by words or conduct of the debtor or any person acting on his behalf,

the creditor was induced to refrain from making a relevant claim in relation to the obligation ...

shall not be reckoned as, or as part of, the prescriptive period."

31. In this case the conduct of the Sales, as described in Article 2 of Condescendence, at pages 7E to 9B of the Record, in my view entitles the pursuer to an inquiry into the facts before any ruling can be made about the quinquennial prescription. On the basis of the pursuer's averments, it is at least arguable that the Sales' conduct lulled the pursuer into a false sense of security, such that he did not think to question the proposed method of remunerating his services until Mrs. Sale's death in 1997. I do not accept that it is possible, without some inquiry into the facts, for a court to form a view as to whether the pursuer could with reasonable diligence have discovered the true state of affairs earlier than 1997; and if Mrs. Sale's death in 1997 is established after evidence to be the correct terminus a quo for the purposes of the quinquennial prescription, then the pursuer's claim has been timeously made, and no part of it has prescribed.
32. I am not therefore persuaded that the defenders' second plea-in-law should be sustained at this stage.

Quantum

33. I am satisfied that the pursuer's averments, together with Mr. Davies' reports, give sufficiently clear notice of the pursuer's approach to quantification. The detailed criticisms made by the defenders during debate might be used to effect during the cross-examination of witnesses and the leading of evidence in rebuttal, and also in final submissions, but at this stage I am not prepared to hold that the criticisms are reason enough to prevent the pursuer from proceeding to a proof before answer.

 

Conclusion

34. I shall allow a proof before answer, all pleas standing. I reserve all questions of expenses to enable parties to address me on that matter.