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Cite as: [2005] CSIH 42, [2005] ScotCS CSIH_42

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Fraser v. The Professional Golfers' Association Ltd [2005] ScotCS CSIH_42 (31 May 2005)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Abernethy

Lord Nimmo Smith

Lord Wheatley

[2005CSIH42]

A2013/00

OPINION OF THE COURT

delivered by LORD ABERNETHY

RECLAIMING MOTION

COLIN FRASER (Assisted Person)

Pursuer and Reclaimer;

against

THE PROFESSIONAL GOLFERS' ASSOCIATION LIMITED

Defenders and Respondents;

_______

Act: Sandison; Morton Fraser

Alt: R. Anderson, Q.C.; Brechin Tindall Oatts

31 May 2005

[1] This is an appeal from the decision of the Lord Ordinary sustaining the defenders' plea to the relevancy and specification of the pursuer's pleadings and dismissing the action.

[2] The pursuer is a former trainee professional golfer who seeks an award of damages against the defenders, The Professional Golfers' Association ("the PGA"), for breach of contract or, alternatively, on the ground of their fault and negligence in relation to the conduct of a final examination that he required to pass in order to become eligible for election to membership of the PGA. The pursuer passed all elements of the final examination with the exception of a part of it on the repair of golf clubs. He failed that part of the examination on two occasions and re-sat it for a third and final time on 29 November 1995. The pursuer failed that examination. Had he passed it, he would have passed the entire examination.

[3] The first arm of the pursuer's case against the defenders is that it was an implied term of the contract between him and the PGA constituted by his registration as a Registered Trainee with the PGA that they would, in conducting the club repair examination, assess his performance fairly and reasonably and by the application of the standards of a careful and competent professional golf club repairer. He also avers that it was a second implied term of the contract that the defenders would not, in conducting the examination, require him to carry out a repair in circumstances not dealt with in the PGA Training Manual and with which he had not been trained to deal. In the alternative case, based on the negligence of the defenders, the pursuer avers that the defenders had a duty to take reasonable care to assess his performance at the examination fairly and reasonably and by applying the standards of a careful and competent professional golf club repairer and, separately, not to require him to carry out a repair in circumstances not dealt with in the Training Manual and with which he had not been trained to deal.

[4] The case came before the Lord Ordinary on the Procedure Roll when the defenders sought dismissal of the action on the basis of the irrelevancy and lack of specification of the pursuer's pleadings. In relation to the breach of contract case the Lord Ordinary held that the Constitution and Regulations document, the terms of which regulated the relationship between the pursuer and the defenders, formed a contract between the parties in respect of the topics covered by it. He upheld the pursuer's contention that it was an implied term of that contract that the defenders would assess the pursuer's performance fairly and reasonably and by application of the standards of a careful and competent golf club repairer. He rejected the contention that there was a second implied term as averred by the pursuer. He rejected the argument that the contract could not work without the second implied term but he held that the pleadings in relation to the first implied term lacked any specification as to the way in which the defenders failed to assess the pursuer's performance fairly and reasonably or failed to apply the standards of a careful and competent professional golf club repairer. He also found, for reasons that are fully set out in his Opinion, that the pursuer's case so far as based on negligence was irrelevant. He therefore sustained the defenders' first plea in law and dismissed the action.

[5] Before us the Lord Ordinary's decision was challenged on one matter only. The pursuer sought to bring under review the finding that he could not succeed in the breach of contract case in relation to the first implied term because his averments lacked specification as to the way in which the defenders failed in conducting the club repair examination to assess his performance fairly and reasonably or failed to apply the standards of a competent professional golf club repairer.

[6] Mr. Sandison, for the pursuer, submitted that in coming to that conclusion the Lord Ordinary was in error. He pointed to the pursuer's pleadings in Article 12 of the Condescendence (page 30B-C of the Reclaiming Print), which set out the full wording of the term which the Lord Ordinary held was implied in the parties' contract. In Article 5 the pursuer avers (page 17A-E of the Print) what he did at the examination. Article 7 (pages 22E-23A) sets out the three criticisms which were made of the pursuer's performance in the examination, averments which are admitted by the defenders. These criticisms are

"(a) that he had used the wrong drill size; (b) that he had let the lead go hard while pouring; and (c) that he drilled a further cavity to add more weight rather than drilling out the first cavity made by him and refilling it."

The pursuer then goes on to aver that "none of these criticisms was justified ... by reference to the standards of a competent and careful professional golf club repairer." In Articles 8, 9 and 10 respectively he takes each of the three criticisms in turn. In Articles 8 and 10 he avers the reasons why what he did was appropriate and reasonable judged by the standard of a competent and careful professional golf club repairer. In Article 9 he avers that he did not let the lead go hard while pouring it and goes on to give his reasons for saying that, expanding on the averments in Article 5 of the Condescendence which we have referred to. Mr. Sandison also referred us to the averments at the end of Article 7 where the pursuer answered an averment by the defenders on this issue.

[7] Mr. Sandison submitted that these averments gave the defenders ample specification of the case the pursuer was making on this branch of the case. His position was clearly stated and the defenders could not reasonably complain that they did not know what it was or that there was anything in these averments which could take them by surprise. In that situation the Lord Ordinary ought to have sustained the defenders' first plea in law to the extent only of refusing probation of the pursuer's averments in Article 12 of the Condescendence dealing with the second implied term contended for by the pursuer (at pages 30D-31A, 31B-C and 31D-E of the Reclaiming Print) and the whole of Article 13 of the Condescendence, which deals with his alternative case based on negligence. The pursuer's second plea in law should also be repelled. There were also one or two minor consequential changes in the pursuer's pleadings which were required, which the pursuer could deal with. For the rest proof before answer should be allowed of the parties' whole averments.

[8] In reply Mr. Anderson, Q.C., for the defenders, invited us to refuse the reclaiming motion. He submitted that once the second implied term had been rejected, it was virtually impossible to give content to the first implied term. Concentrating on the first part of the implied term, the words "fairly and reasonably", Mr. Anderson submitted that nowhere in the pursuer's averments was there any explanation as to what was unfair and unreasonable in what the defenders' examiners had done in failing the pursuer in the examination. Nor, he continued, was there any explanation as to how they had failed to apply the standards of a competent and careful professional golf club repairer. The pursuer was no more than a disappointed examinee who disagreed with the result of the examination. Mr. Anderson referred us to the defenders' detailed averments as to why the pursuer had failed the examination, which were contained in the answers to Articles 5, 7, 8, 9 and 10 of the Condescendence. He submitted that the Court was entitled to look at those averments and in light of their detailed nature it was all the more necessary for the pursuer to set out his case fully.

[9] The first point we should deal with is Mr. Anderson's concentration on the words "fairly and reasonably" as a separate phrase in the term which the Lord Ordinary held to be implied in the parties' contract, what has been called the first implied term. In our opinion those words are to be read together with and are qualified by the words that follow, namely, "by the application of the standards of a careful and competent golf club repairer". That gives them content and is how they appear to be dealt with both in the pleadings and by the Lord Ordinary in his Opinion. Accordingly, the requirement in the implied term for the defenders to assess the pursuer's performance in the examination fairly and reasonably means by the application of the standards of a careful and competent golf club repairer.

[10] Secondly, we see no reason to do other than follow the normal course in debates of this kind, which is to take the pursuer's pleadings pro veritate and, except in so far as they admit the pursuer's pleadings, disregard the defenders' pleadings.

[11] In our opinion the pursuer's averments give adequate specification of what his case is in relation to the first implied term of the parties' contract. In respect of the three criticisms made of his performance in the examination the pursuer has made averments as to what he did, he has averred that there was no justification for any of the three criticisms by reference to the standards of a competent and careful professional golf club repairer and in each case he has averred his reasons for saying that. In our opinion it cannot reasonably be said that the defenders do not have fair notice of the pursuer's case.

[12] For these reasons we shall grant the reclaiming motion. We shall recall the Lord Ordinary's interlocutor of 12 March 2004 in so far as he sustained the first plea in law for the defenders and dismissed the action. We shall sustain that plea but only to the extent of refusing probation to the pursuer's averments in Article 12 of the Condescendence from the words "It was further, et separatim" at page 30D of the Reclaiming Print to the words "form part of their agreement" at page 31A; from the words "Further, et separatim," at page 31B to the words "Article 5 of Condescendence" at page 31C; and from the words "Separatim, had the Defenders" at page 31D to the words "membership of the Association" at page 31E; and to the whole of Article 13 of the Condescendence. No doubt the parties themselves can deal with the minor consequential averments. We shall also repel the second plea in law for the pursuer. Quoad ultra we shall allow a proof before answer of the parties' whole averments.