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Cite as: [2004] ScotCS 158

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Brown V. Royal Highland and Agricultural Society of Scotland [2004] ScotCS 158 (30 June 2004)

OUTER HOUSE, COURT OF SESSION

A3490/01

OPINION OF LORD MENZIES

in the cause

THOMAS BROWN

Pursuer;

against

THE ROYAL HIGHLAND AND AGRICULTURAL SOCIETY OF SCOTLAND

Defenders:

________________

Pursuer: P.J.D. Simpson; Haig-Scott & Co., W.S. (for Bannatyne Kirkwood France & Co)

Defenders: Hayhow; Tods Murray, W.S.

30 June 2004

[1] This action relates to a dispute between the parties concerning moveable property belonging to the pursuer situated at the defenders' premises at the Royal Highland Centre, Ingliston, Edinburgh. It is a matter of agreement between the parties that by Lease dated 16 and 17 August 1989 the defenders leased to the pursuer subjects at Ingliston for the purpose of operating motor racing and a motor racing school at the circuit there. The parties are also agreed that in May 1991 the defenders sold to the pursuer a quantity of crash barriers, which were principally necessary to enable the pursuer to operate his motor racing events at the Royal Highland Show Ground, but that in the event that the defenders wished to stage an event there which necessitated the use of the barriers, parties agreed that a charge would be leviable therefor by the pursuer. The pursuer kept a stock of parts for the purpose of altering and repairing the barrier system, which stock he kept in an area within the defenders' grounds. The Lease whereby the subjects were let to the pursuer appears to have been terminated in May 1996. In the present action the pursuer appears to make two broad claims against the defenders - (1) he appears to be claiming money in respect of use by the defenders of his barrier system, on occasions both before and after the termination of the Lease, and (2) he appears to be claiming for the stock belonging to him which was stored on the defenders' premises and which he avers was wrongfully disposed of by the defenders without his consent.

[2] By way of background it is appropriate to explain that the present action was raised in May 2001, at a time when the pursuer was legally represented. He was sequestrated on 26 August 2002 and the Accountant in Bankruptcy was appointed as his permanent trustee in bankruptcy. In January 2003 the trustee intimated that he did not propose to enter into the present action, and abandoned the claims in the action to the pursuer. On 28 February 2003 a Procedure Roll diet which had been fixed for that date (and had been fixed for that date more than four months previously) had to be discharged because the pursuer sought and was granted leave to lodge a Minute of Amendment within 14 days. His agents then withdrew from acting on his behalf, and the pursuer maintained the action as a party litigant. On 16 May 2003 the pursuer's motion to allow the Closed Record to be amended in terms of his Minute of Amendment and the Answers thereto was allowed, and the cause was re-appointed to the Procedure Roll on the defenders' preliminary pleas-in-law, the diet being fixed for 28 November 2003. On 27 November 2003 the pursuer's motion to discharge the diet of Procedure Roll fixed for the following day was granted, on the grounds of his ill-health, and a further Procedure Roll diet was fixed for 5 March 2004. On 1 March 2004 the pursuer's motion to discharge that Procedure Roll diet was again granted, on the basis that he had instructed solicitors to act on his behalf, and a fourth diet on the Procedure Roll was fixed for 4 June 2004. At a By Order hearing on 17 March 2004 the pursuer confirmed to the court that solicitors had been instructed to act on his behalf, and he understood that the hearing fixed for 4 June 2004 would not be adjourned.

[3] On 27 May 2004 the pursuer appeared before the court with a 44 page Minute of Amendment, and moved for this to be received and the diet of Procedure Roll fixed for 4 June 2004 to be discharged. At this time he remained a party litigant, and it appears that no solicitors had acted on his behalf since March 2003. The court refused his motion. On the morning of 4 June 2004 the pursuer was represented by counsel and agents, who had received instructions for the first time that week, and who had been granted emergency legal aid to act on behalf of the pursuer. Counsel sought a discharge of the Procedure Roll fixed for that day, because of the pursuer's ill-health. The pursuer had also lodged another Minute of Amendment, which was different from that tendered on the previous week and refused by the court. I was told that this had been drafted by the pursuer without legal advice, and counsel suggested that it did not take the case much further. What counsel for the pursuer sought was a continuation for two weeks to enable him to draft a fresh Minute of Amendment. This motion was opposed by counsel for the defenders. Having regard to the procedural history of this case I did not consider that it would be fair to the defenders, nor in the interests of justice, to discharge this Procedure Roll yet again, particularly standing the fact that the pursuer was bankrupt and his trustee had abandoned this action to him, and counsel for the pursuer could not, with confidence, state that the pursuer's pleadings could be made more relevant by a Minute of Amendment which had yet to be drafted. I therefore refused the pursuer's motion.

[4] Counsel for the defenders moved for dismissal of the action under reference to the second, fourth and seventh pleas-in-law for the defenders. The second plea-in-law sought dismissal of the first conclusion because there were no averments in support of it. The first conclusion sought payment by the defenders to the pursuer of £384,800 with interest thereon, but there was no hint in the pleadings of the legal basis for this claim, nor to what it related, nor how it was calculated. Counsel for the pursuer accepted that there were no averments to support this conclusion and that the proper course of action was that it should be dismissed. I regarded this concession as properly made.

[5] Counsel for the defenders next turned his attention to the third conclusion, which sought payment of £45,500. This appeared to relate to the agreement between the parties whereby the defenders would pay the pursuer for their use of the barrier system. Counsel for the defenders' submissions attacking this claim fell under five branches:

(1) Counsel submitted that there was a contradiction between the pursuer's averments in Articles 2 and 5 of condescendence and the first, second and fifth pleas-in-law for the pursuer. Looking at these, it was impossible to tell what sum the pursuer was claiming in respect of the barrier agreement, or the legal basis of his claim. The first and second pleas-in-law appeared to suggest that the sum claimed in respect of the barrier agreement was the sum first concluded for, namely £384,800. However, the fifth plea-in-law appeared to link the sum claimed under the barrier agreement to the sum sought in the third conclusion. Again, it is not clear whether the pursuer is seeking damages for breach of contract or payment of a contractually due sum - the first plea-in-law contains both a claim for damages and a claim for a sum due, the second plea-in-law seeks damages and the fifth plea-in-law seeks sums due. There was such confusion in the pursuer's pleadings that this claim was irrelevant.

(2) On a proper reading of the pursuer's pleadings, counsel submitted that the pursuer had admitted that he had been invited to remove all materials belonging to him at the end of the lease. There is an averment for the defenders (at page 14B of the Closed Record (as amended)) as follows: "Admitted that the defenders called upon the pursuer to remove his stock, under explanation that those calls formed part of repeated requests made to him to remove all materials belonging to him." This was the only substantive averment in answer 3 for the defenders. It was met by the pursuer with the following admission (at page 13D): "With reference to the defenders' averments in answer, admitted that the pursuer was invited to remove, inter alia his stock." Counsel submitted that this could only be read as an admission that the pursuer was requested to remove all materials belonging to him. As a result of that admission there could be no argument open to the pursuer that the barrier agreement subsisted beyond the termination of the Lease.

(3) The pursuer makes no averment to the effect that the barrier agreement endured for a specific time. Under reference to Walker on Contracts (3^rd ed.) at para.34.20, counsel submitted that this was therefore a contract at will, which continues indefinitely and can be terminated by either party at any time. If, as submitted above, the pursuer has admitted that he was requested to remove all his materials from the premises, that can only be regarded as a Notice of Termination of the barrier agreement.

(4) Counsel for the defenders attacked the specification of the pursuer's averments as to how he calculates his claim. There are no averments on the pursuer's behalf setting out the dates on which he claims that the defenders used the barrier system, nor what rates were applicable to such usage on each occasion, nor any averments linking this usage to the sum third concluded for. All that appears in the pursuer's pleadings is an averment (at page 10A) that "a schedule of the events known to the pursuer where the defenders have been obliged to make use of the barrier system is produced and incorporated for the sake of brevity". No such schedule of events was lodged at the time when this averment was placed on record, and indeed no such schedule has ever been lodged. Documents bearing the number 6/1/265 were intimated to agents for the defenders, along with many other productions, shortly before the debate, but they had never been lodged in court. In any event, they amount to no more than assertions which could not be tested, and which assert that the total sum sued for now rests at £1,246,000. The pursuer should not be entitled to rely on this documentation (parts of which his counsel sought to lodge at the bar during the debate); to allow him to do so would be to the substantial prejudice of the defenders, it would be contrary to the provisions of Rule of Court 27.1(1)(c), and it would fly in the face of the principles of fair pleading and the dicta of the court in Eadie Cairns v Programmed Maintenance Painting Ltd 1987 S.L.T. 777.

(5) Counsel for the defenders submitted that there was a related action having the same subject-matter as the present proceedings which was decided by Sheriff Craik at Edinburgh on 31 March 2000 and by the Inner House on 17 May 2002. He drew my attention to finding in fact 4 of Sheriff Craik's judgment, which was in the following terms:

"The barriers were principally necessary to enable the defender to operate his motor racing events but it was agreed between the parties that, in the event of the pursuers wishing to stage an event themselves which necessitated the use of the defender's crash barriers, a charge would be leviable therefor by the defender."

(In that action of course the present defenders were the pursuers, and the present pursuer was the defender). At page 9 of his Note the Sheriff expanded on this. Having identified that the first question for him was what was the agreed basis on which the defender could charge the pursuers for the use of his barrier facility, he said:

"On the first question, I preferred the evidence given on behalf of the pursuers that the defender was only entitled to charge for the use of his barriers when these were requested by the pursuers otherwise, as several of the witnesses put it, the ludicrous situation would have resulted in the pursuers having to pay the defender for the use of their own premises."

The observations made by the Inner House in paras.2 and 3 of the Opinion of the Court supported the sheriff's view.

[6] Counsel submitted that the pursuer's averments in this action suggested an agreement in respect of the barriers which was different from what the sheriff, the sheriff principal and the Inner House held to be the agreement. He referred me to the pursuer's pleadings at pages 9B to 10B and in Article 5 of condescendence. Because the terms of the barrier agreement have been determined by the court and are established as a matter of law, in order to plead a relevant case in this action the pursuer would require to aver that the defenders requested to be allowed to use the barriers on each occasion on which he avers that they were in fact used. His failure to make such an averment rendered the claim under the barrier agreement irrelevant.

[7] Counsel for the pursuer responded to each of these criticisms as follows. With regard to the first point, he accepted that there might be some confusion or contradiction when comparing the pursuer's first and second pleas-in-law with the fifth plea-in-law. However, he had already conceded that the first and second pleas-in-law should be repelled, so the court should not allow the defenders to look to these and claim to be confused. The pursuer's fifth plea-in-law was a clear proposition in law, which supported the third conclusion and which had averments in support of it.

[8] With regard to the pursuer's second and third points, counsel accepted that the barrier agreement was a contract at will which could be terminated by either party at any time. However, he observed that nowhere in the pleadings for either party is it averred that the barrier agreement was in fact terminated. However, he accepted that a call by the defenders for the pursuer to remove all materials belonging to him was inconsistent with a continuing barrier agreement, and he further (quite properly) conceded that the pursuer's admission at page 13D must be construed as being an admission that the defenders had indeed called on him to remove all materials belonging to him.

[9] With regard to the defenders' fourth point regarding lack of specification, counsel for the pursuer sought to rely on two pages of production 6/1/265 which, per incuriam, had not been lodged until the defenders' counsel was in the midst of his submissions. This document had been intimated to the defenders' agents on the previous week and was actually given to the defenders themselves in August 2002. He accepted that the document contained arithmetical errors, and that the sums brought out in it did not correspond with the sum third concluded for. Nonetheless he maintained that the documentation did give enough specification to constitute fair notice to the defenders. He suggested that when the defenders were using the barriers after the termination of the pursuer's Lease, the court should not insist on too high a level of specification, because the pursuer would not necessarily know that the barriers were being used by the defenders for a particular event. With regard to the fifth point, counsel maintained that there was no material difference between the terms of the barrier agreement as averred in this action and the terms as found established in the previous action. In any event, he maintained that short of a situation of res judicata (which was not pled) the previous findings of fact are not binding in this case.

[10] I have little difficulty in deciding this matter in favour of the defenders. The pursuer's pleadings in support of the sum sought in the third conclusion are confusing, self-contradictory and wholly lacking in the level of specification required by our procedures in order to give fair notice to the defenders of how the claim is made up. There is force in each of the five points made by counsel for the defenders. Looking to the averments and to the pursuer's first, second and fifth pleas-in-law, I find it impossible to ascertain the factual basis for the pursuer's claim under the barrier agreement, nor is it clear what the legal basis is for this claim. Is it a claim for damages for breach of contract? Is it a claim for rental due? On what dates were the barriers used by the defenders, and what sums were agreed to be chargeable on each occasion? The pursuer's claim for payment appears to relate to usage both before and after termination of the barrier agreement, yet, as was conceded by the pursuer's counsel, this must be inconsistent with repeated requests made to the pursuer to remove all materials belonging to him. Moreover, it would be wholly unfair to the defenders to allow the obvious lack of specification in the pursuer's pleadings to be cured by a document lodged only on 4 June 2004, no schedule of events having been produced until then (despite the averment to the contrary). To do so would be contrary to the observations of the Inner House in Eadie Cairns, and would fly in the face of Rule of Court 27.1. In any event, the document sought to be relied upon in this regard contains obvious arithmetical errors, does not add up to the sum third concluded for, and appears to be based in part on vague assertions which cannot properly be investigated or tested by the defenders. I am in no doubt that the pursuer's third conclusion must be dismissed, the supporting pleas-in-law repelled, and that the averments in support of the third conclusion are both irrelevant and lacking in specification.

[11] Counsel for the defenders went on to attack the basis of the pursuer's claim made in conclusion 2 for £11,430. This aspect of the claim, he submitted, was founded on the premise that the barrier agreement was continuing, and subsisted after the date of termination of the Lease. This was clear from the averments at page 13B-C of the Closed Record. As counsel for the defenders had already submitted, on his own averments and admissions the pursuer had accepted that the defenders had called upon him to remove all materials belonging to him, and this had been done in August 1995 and subsequently in 1997. In light of this, the premise on which this claim was based fell. The defenders were entitled to the exclusive use and enjoyment of their own property, and could take self-help measures to remove items on their premises to enable them to enjoy them. In this regard he referred me to Gordon's Land Law (2^nd ed.) at paras.13-05 and 13-07, and Brown v Lee Construction 1997 S.L.T. (Notes) 61. Taking the pursuer's averments pro veritatae, he has been called on to remove his stock and materials and has failed to do so, and the defenders are entitled to self-help to remove them. There was no issue in the present action relating to unjust enrichment, nor to questions of any obligation for count reckoning and payment. The pursuer had no averments as to the legal basis on which he could recover any sums. In any event, the pursuer's pleadings were wholly lacking in specification as to the identity, nature and value of the materials left on the defenders' premises and subsequently disposed of. Once again there was an averment (at page 13C/D) that "the stock contained the items specified in the schedule produced and had a value of at least £11,430." There was no specification as to the materials left, no schedule had been produced, and in any event there was no schedule incorporated into the pleadings. For this reason alone, counsel submitted that the action insofar as based on the second conclusion should be dismissed.

[12] In response, counsel for the pursuer pointed out that on the defenders' own averments (at page 12B/C) the Lease agreement was terminated in May 1996. Any call on the pursuer to remove his stock in August 1995 could therefore not have had the effect suggested by counsel for the defenders. However, counsel accepted that there was no way in which the defenders could test the pursuer's claim regarding the nature and quantity of materials left on the premises, nor the value of those materials, nor was there any date specified as to when the defenders disposed of the stock nor the method of such disposal.

[13] I regard the pursuer's claim under conclusion 2 as being even more lacking in specification that his claim under conclusion 3. There has been absolutely no attempt to specify, whether in the averments or by means of a schedule incorporated therein, the quantity, nature or value of the materials which the pursuer alleges were disposed of by the defenders. There is no attempt to specify how the defenders disposed of these materials, nor when such a disposal was made. There has been no schedule incorporated into the pleadings, nor has any such schedule even been lodged as a production. The defenders are left facing a claim for £11,430 with no fair notice as to how this figure is reached. I have no hesitation in dismissing this claim.

[14] In the result, I sustain the fourth plea-in-law for the defenders and dismiss the action.