Scottish Court of Session Decisions

Clark v. Hope & Anor [2005] ScotCS CSOH_106 (08 August 2005)

1. There are two motions before the Court. The first, chronologically, is a motion by the pursuer, enrolled on 2 March 2005, to "reinstate" certain parties as defenders in the action, "as stated on the original summons dated 25^th April 2000". This motion is opposed by the existing defenders on the ground that settlement was agreed in the action in June 2004. That alleged settlement is the subject of a Minute procedure, initiated by the defenders and minuters in December 2004, in which the defenders seek declarator that the action has settled on terms agreed by counsel. The pursuer is respondent to that Minute. The second motion before the Court arises from that Minute procedure. It is a motion by the defenders, enrolled on 22 April 2004, to sustain the third and fourth pleas-in-law of the Minute and thereafter to grant decree of declarator as craved therein, on the ground that the pursuer (the respondent to the Minute) is in default of Rule of Court 18.3(2) by failing to lodge Answers to the Minute. It is appropriate to deal with these motions in reverse order. However, I must first set out in some detail the circumstances in which these motions come before this Court. For convenience I shall refer to the pursuer and respondent simply as "the pursuer"; and to the defenders and minuters simply as "the defenders".
2. In the action the pursuer claimed damages for injuries sustained in her work as a nurse employed at the Temple House Private Nursing Home in Mossblown between 1991 and 1997. She ceased work as a result of neck pain. The present defenders are the partners in the nursing home, and are sued both as individuals and as partners. The action was signetted on 25 April 2000. At that time there were three other defenders named in the action, namely Mr Alistair Hope and Mrs Michelle Hope, also sued as individuals and as partners in the nursing home, and Temple House (Mossblown) Limited, presumably sued as a company involved in the ownership or running of the nursing home, though this is not revealed by the averments in the Summons. I shall refer to these as "the other defenders". However, on 8 August 2000, before the action called, a motion was enrolled on behalf of the pursuer, stating that the pursuer did not intend to serve the summons on those other defenders and moving the Court to allow the summons to be amended by deleting them from the instance and from the Articles of Condescendence. That motion was granted on 9 August 2000. So far as I am aware, the summons was never served on the other defenders.
3. The action proceeded against the present defenders. It is apparent from the interlocutors pronounced by this Court, and from the documents lodged in process, that the pursuer changed her legal representation on a number of occasions in the period leading up to proof, and on occasions she appeared before the Court in person. In January 2002 a proof before answer was allowed. A diet fixed for 17 June 2003 was discharged on the pursuer's motion on 13 May 2003. A new diet was fixed for 3 February 2004 but was discharged on the pursuer's motion on that day (a previous motion for discharge having been refused). A further diet was fixed for 29 June 2004. The pursuer moved the Court to discharge this diet also, but that motion was refused.
4. On 29 June 2004 both parties attended for Court represented by counsel. During the course of that morning, before the case came into Court, settlement was agreed between counsel. The terms of that agreement were set out in a document, signed by both counsel, headed "Note by Counsel" followed by the name of the case. The terms recorded were as follows:


"Terms of settlement



The Defenders will pay to the Pursuer £100,000



The Defenders will be responsible for payment of CRU benefits.



The Defenders will bear the Pursuer's expenses up to a maximum of £50,000 on an agent and client third party paying basis.



The Defenders will not seek to enforce awards of expenses in their favour.



In respect whereof



[counsel] for the Pursuers



[counsel] for the Defenders



29/6/04"



As a result of this apparent agreement, the case did not come before the Court on that day. I infer that, in the usual course, the Keeper was informed that the case had settled. It was no doubt anticipated that a Joint Minute would be forthcoming.

5. Payment was made by the defenders in terms of this apparent agreement by a cheque from their insurers drawn in favour of the Scottish Legal Aid Board ("SLAB"). This cheque, dated 6 July 2004, was sent by the defenders' agents to Morton Fraser, the then agents for the pursuer, under cover of a letter dated 12 July 2004. That letter read, so far as material, as follows:


"We now enclose our clients' cheque for £100,000 in settlement of the principal sum and payable to the Scottish Legal Aid Board. Please would you acknowledge receipt and also let us have the Board's receipt in due course.



We look forward to receipt of your own account of expenses and details of expenses and details of other legal expenses incurred by the pursuer with regard to these proceedings."



On 14 July 2004 Morton Fraser wrote back acknowledging receipt and confirming that they had forwarded the cheque to SLAB. They continued:



"We attach a draft Joint Minute for consideration by you. Once that has been disposed of we shall forward you our Account of Expenses."



They then referred to the question of an additional fee. SLAB receipted the payment on 16 July and on 21 July Morton Fraser sent a copy of that receipt to the defenders' agents.

6. The draft Joint Minute sent by Morton Fraser on behalf of the pursuer was in the following terms:


"The pursuer and [counsel] for the defenders concur in stating to the Court that this action has been settled extra judicially. They therefore crave the Court:-



(1) to find the defenders liable to the pursuer in the expenses of the action up to a maximum of £50,000 on an agent and client third party paying basis, with no contra awards of expenses to be enforced by the defenders; and



(2) Quoad ultra to assoilzie the defenders from the conclusions of the Summons."



It appears from a motion enrolled by the defenders on 21 September 2004 that the Joint Minute was sent by the defenders' agents to agents for the pursuer on 10 August 2004 in the expectation that it would be signed by or on behalf of the pursuer and then lodged in process with the appropriate motion to have the authority of the Court interponed thereto. But it has never been signed by or on behalf of the pursuer. Nor was there any motion enrolled to interpone the authority of the Court. Hence the defenders' motion enrolled on 21 September 2004 sought an order that the pursuer's agents should take those steps. That motion was dropped. On 8 November 2004 the defenders' agents enrolled a motion seeking an order requiring the pursuer to appear to explain her failure to execute and return the Joint Minute, "the principal sum agreed in settlement of this action having been paid". That motion shows that the pursuer's solicitors had withdrawn from acting at some time between drafting the Joint Minute and it being sent back to them for signature. On receipt of the Joint Minute, they had, therefore, returned it to the defenders' solicitors, who in turn sent it to the pursuer herself by letter of 1 October 2004 asking her to sign and return it. She has not done so.

7. The form of opposition to the defenders' motion of 8 November 2004, completed by the pursuer in person, throws some light on the reason why the pursuer had not signed the Joint Minute; and contains the first indication of the pursuer's position in regard to the alleged settlement. That position has remained fairly constant to this day. The grounds of opposition read as follows:

1. The pursuer has been advised that the proposal put to her has been breached by an advocate and the solicitors involved in this case.
2. The pursuer has been advised that the court should be made aware that the pursuer continues to experience symptoms related to her injury and is awaiting an appointment to see a consultant."

The motion was heard by Lord Carloway on 10 November. The interlocutor pronounced on that day was that "The Lord Ordinary having heard Counsel and the Pursuer personally, on the Defenders' motion, makes no order". In the Minute of Proceedings it is noted that the Lord Ordinary "advised the pursuer to contact solicitors in respect of her insisting that she disputed that 'settlement', together with expenses, had been reached on 29 June 2004, and warned her of the consequences that may occur in the future."

1. On 15 November 2004, in an effort to bring matters to a head, the Defenders lodged a Minute of Amendment in which they claimed to be entitled to absolvitor by reason of the action having been settled; and by which they sought interdict against both the pursuer and SLAB to prevent the pursuer receiving the money paid to SLAB in settlement of the action until such time as that question was resolved. At the hearing of a Motion on 17 November, Lord Eassie refused the defenders' motion to allow that Minute of Amendment to be received. Although there is no relevant Minute of those proceedings, I infer that the Court considered that a Minute of Amendment was not the appropriate way to resolve this issue. Cases such as North British Railway Co. v Bernards Limited (1900) 7 S.L.T. 329 suggest that, although the form of procedure to be adopted is within the discretion of the Court, an appropriate procedure for resolving a dispute as to whether an action has settled extrajudicially is, at least in the first instance, by Minute and Answers in the action.
2. It was this procedure that the defenders thereafter adopted. They intimated a Minute seeking declarator that the action had been settled in terms of the agreement of 29 June 2004; and quoad ultra craving the Court to grant absolvitor to the defenders from the conclusions of the Summons. They also sought their expenses of and consequent upon the Minute. On 3 December 2004 they enrolled a motion to allow their Minute to be received and for Answers, if so advised, within 14 days. This was opposed, though the grounds of opposition were not identified. The motion came before Lady Paton on 7 December 2004 when the pursuer appeared in person. Lady Paton allowed the Minute to be received, ordained the pursuer to lodge written Answers thereto on or before 11 January 2005, and allowed the parties to adjust the Minute and Answers until 8 March 2005. The case was appointed to the By Order Roll of 10 March 2005.
3. In the Statement of Facts within the Minute, the defenders recited the fact and terms of the agreement. They further averred that a cheque in respect of the settlement was drawn in favour of the SLAB, who had acknowledged receipt of the cheque for £100,000 on or about 16 July 2004. The Minute ended with a plea-in law to the effect that "the pursuer and the defenders having entered into a written agreement in settlement of this action as condescended upon, declarator should be granted as first concluded for".
4. Meanwhile the pursuer enrolled a motion on 2 March in the following terms:


"On behalf of the pursuer to reinstate Mr Alistair Hope (Third Defender) Mrs Michelle Hope (Fourth Defender) and Temple House Private Nursing Home (Fifth Defender) as stated on the original summons dated 25^th April 2000"



The defenders marked opposition to the motion stating that it was not competent since the action had settled; and that, in any event, the Court should deal with this motion at the same time as the pending Minute procedure.

5. When the case first came before me on the By Order Roll on 10 March 2005, the pursuer again appeared in person. By that time, all that the pursuer had lodged in process in response to the Minute was a letter dated 11 February 2005 (No. 55 of Process) which, inter alia, enclosed a copy of a fax which set out, in five numbered paragraphs, points which the pursuer wished to make in response to the defenders' Minute. These points were as follows:

1. [the pursuer's] advocate told [the pursuer] a cheque, for the sum of £100,000 would be sent directly to her within the next seven days. This did not happen.
2. [the pursuer's] advocate did not ask [the pursuer] to sign any agreement of acceptance for the sum of £100,000.
3. [the pursuer's] advocate told [the pursuer], that the expenses of the case would be met up to £50,000. He did not state that this would be on an agent and client third party paying basis.
4. [the pursuer] has received no interim payment for any sum lodged in her name at the Scottish Legal Aid Board.

These were clearly not answers as required by the interlocutor of 7 December 2004. Nor did the points made in the fax make it clear what was or was not in issue. For example, it was not clear whether the fact of the settlement agreement was being put in issue; whether it was said that the pursuer's counsel had exceeded his authority, and, if so, whether this was relied on as undermining the settlement agreement or was simply a rehearsal of a complaint about counsel; or what was the significance of the point about payment to the Scottish Legal Aid Board. In those circumstances counsel for the defenders moved at Bar for decree by default. I refused that motion. Where a party is unrepresented, it is, to my mind, inappropriate to move quickly to decree by default when there is the possibility that the pursuer had not fully appreciated what was required. There is a risk of unfairness. Accordingly, at that By Order hearing I explained to the pursuer what was required, namely that in her answers she required to answer the individual averments in the Minute - identifying what was accepted and what was not accepted - as well as setting out any case she might have as to whether there was or was not a settlement and why any settlement (if she accepted that there was a settlement) should not be enforced. In the Court's interlocutor of 10 March 2005 the pursuer was allowed

That period of 4 weeks gave the pursuer until 7 April to lodge Answers. A further period of two weeks was allowed for adjustment. I continued the cause By Order until 28 April 2005; allowed parties to enrol any motion for further procedure to be heard at the By Order diet; and directed that any motion by the defenders for decree in the action must be intimated to the pursuer by 22 April 2005, the purpose of this latter direction being to ensure that the pursuer, being a party litigant, had adequate notice of any such motion and the basis for it.

1. No further documents having been lodged by the pursuer, the defenders adjusted their Minute to respond to some of the points raised by the pursuer in her letter of 11 February 2005, which I have previously set out, and to include pleas to the relevancy. They then enrolled a Motion on 22 April 2004 in the following terms:


"On behalf of the defenders and Minuters to sustain the third and forth pleas-in-law of the Minute (as adjusted) and thereafter to grant decree as craved, the pursuer and respondent being in default of Rule of Court 18.3(2) and of an interlocutor of this Court. Esto the pursuer and respondent is not in default the defenders and Minuters seek a hearing on the Minute and Answers."



Opposition was marked to this Motion.

2. On 26 April the pursuer lodged in process a number of documents, which included 6 inventories of productions, a typed copy of "pleas-in-law", and a corrected motion. The latter simply corrected the previous motion to re-instate certain defenders by identifying the original company, Temple House (Mossblown) Limited, as one of the defenders to be re-instated. The pleas-in-law stated as follows:

1. The pursuer has been advised, that the action has not settled under the terms which counsel stated.

The matter duly came before me on 28 April when the pursuer sought further time to consult a solicitor with regard to the proper presentation of her case. She explained that she had been unwell for part of the time since the last hearing. There was discussion about her continued failure to lodge Answers as required. With some reluctance I allowed her a further two weeks "to consider with legal advice what Answers are to be stated to the Minute". I continued consideration of both motions until 13 May 2005. At the continued hearing on 13 May, the pursuer again appeared in person and sought a further 4 week adjournment. I refused this motion for an adjournment; but I allowed the pursuer an adjournment until 11a.m. so as to give her time to collect her papers from her car. I stated that I would then hear the outstanding motions. It was then reported to me that the pursuer was unwell and unable to attend further, so I had no alternative but to adjourn the hearing on the outstanding motions until 20 May 2005. There was no attendance by the pursuer on that adjourned hearing - the Court was shown a faxed medical certificate stating that she was not able to appear - so I continued the matter until 3 June. There was no appearance by the pursuer on that day either - a virtually identical medical certificate having been sent to the Court - so again the case had to be continued until 24 June. My interlocutor, however, made it clear that if the pursuer failed either to appear or be represented at that hearing the Court might grant such order as it thought fit in all the circumstances.

1. At the continued hearing on 24 June 2005, the pursuer again did not appear, nor was she represented. A further medical certificate was produced certifying that the pursuer was suffering from stress and anxiety symptoms relating to the current legal proceedings. It described how the case was becoming all consuming to the pursuer and that her mental health was suffering. The doctor providing the certificate did not feel it was in the pursuer's best interests to attend legal proceedings until a mental health review was undertaken. Notwithstanding that certificate, I considered that I ought to proceed to hear the motions, which had been continued until that day. My reasons for doing so were, in brief, as follows. First, while not attempting to go behind the terms of the medical certificates produced on this and previous occasions, it was clear to me that the pursuer had had every opportunity of obtaining representation and had been encouraged on more than one occasion to do so. Even if there were difficulties obtaining legal representation - and the history of the matter shows that she had been represented by at least five or six different firms of solicitors in the period the action was subsisting - she could have been represented by some other person at the hearing. Her mother had frequently attended and, indeed, had addressed the Court. The medical certificate did not address the question of any inability to obtain assistance for representation. In her appearances before me, the pursuer had appeared articulate and well informed about the case, and indeed her lodging of materials showed that she was able to give it active and detailed consideration. Secondly, the Court has a duty to both parties to litigation. The defenders come to Court seeking to enforce what they contend to be a settlement of their action. Unless and until the dispute about the settlement is resolved, the claim will remain on their books. It will no doubt affect their insurance position. A party cannot be expected to have it continuously hanging over him because of the pursuer's failure to obtain representation and inability to appear in person. Of course, the Court must proceed in a manner which it considers best achieves justice between the parties, but in this case I did not consider that granting a further continuation was likely to promote this. My third reason was that the case was not, so it seemed to me, very complex. The pursuer's position had been set out in the documents to which I have referred. In considering the defenders' motion, I was minded, as I indicated to counsel for the defenders, to look behind the procedural question of whether the pursuer had failed to obtemper the interlocutor requiring her to lodge answers. I indicated that I wished to be addressed on the substance of the pursuer's points as identified in the documents which she had lodged. By proceeding in this way it seemed to me that any possible disadvantage to the pursuer by her non-attendance could be taken into account and overcome. I therefore heard the defenders' counsel on his motion for decree in default.
2. Rule of Court 18.3 applies inter alia to answers lodged to a Minute. It requires that answers shall consist of numbered answers corresponding to the paragraphs of the statement of facts in the writ to which they apply and appropriate pleas-in-law. The note in the annotated rules at paragraph 18.3.2 indicate that the notes earlier in Chapter 18, dealing with the form and lodging of defences, are relevant to answers. The principles are well known but are summarised in the note at 18.1.3:


"There should be a concise, accurate and frank response to the articles of the condescendence. Every fact should be answered."



There is not, of course, a requirement in every case that a Minute be answered. But Lady Paton in her interlocutor of 7 December 2004 ordained the pursuer to lodge in process written answers to the Minute. This brings Rule of Court 18.3 into play. If there were any doubt about it, my interlocutor of 10 March 2005 allowing the pursuer a period of 4 weeks to lodge answers in the form prescribed by Rule of Court 18.3(2) made the position clear. Further, whatever had been the pursuer's understanding prior to that hearing before me, I made it clear on that occasion as well as at the hearing on 28 April 2005 that the pursuer was required to go through the Minute and answer point by point the averments made therein. There was no room for any misunderstanding. The pursuer has failed to provide answers. The documents provided to the Court and to the defenders can neither in form nor in substance be regarded as answers. They simply summarise the broad points sought to be advanced by the pursuer without giving any detailed admissions or denials on the basis of which those points can be assessed. In these circumstances the defender is correct in saying that there has been a default by the pursuer both of Rule of Court 18.3(2) and of the interlocutors of this Court. In such circumstances the Court has power to pronounce decree by default. In Mackay's Manual of Practice at page 310 it is said that this power to pronounce decree by default for disobedience of any statutory rule or order of the Court is only exercised in extreme cases, as it is not expedient that a cause should be decided without consideration of the merits. I accept that as an accurate statement of the position. However, in this case the pursuer has had ample opportunity to comply with the terms of the interlocutor. In principle, therefore, I see no reason why I should not accede to the defenders' motion. But before doing so, however, I propose to consider as best I can the lines of argument raised by the pursuer in case they show that there is a real point of substance that she can advance and, therefore, whether it would be unjust, despite her being in default, to grant decree on the defenders' motion. I am grateful to counsel for the defenders for his very full assistance in undertaking this task.

3. Counsel for the defenders summarised the pursuer's complaints as they appeared from the documents to which I have already referred. He said that they could be considered under four heads. These were as follows:


(1) The first complaint appeared to concern the role of the pursuer's counsel and the information that he gave her. Further, he did not ask her to sign the settlement agreement.



(2) The second complaint concerned the way in which expenses were dealt with in the settlement agreement - the pursuer's counsel did not, it is said, tell the pursuer that these would be on an agent and client third party paying basis.



(3) The third complaint appeared to be that the defenders were in breach of contract. The settlement terms had not been met. Payment had not been made within the seven days. Nor had the payment been made to her.



(4) The fourth complaint was that the terms of settlement were inadequate.



Counsel for the defenders added that there were other matters touched upon by the pursuer. The pursuer said that counsel had claimed to be experienced in personal injury matters; but it was not clear whether she was saying that that claim was untrue, or what, if any, consequence was said to flow from this. Further, the pursuer said that she had been advised that the case had not settled; but this was irrelevant, since whether or not the case had settled was a matter for the Court to decide on the materials before it.

4. Before making his submissions on the points raised by the pursuer, counsel for the defenders identified certain matters which were not in dispute. The pursuer did not dispute that the settlement agreement was concluded and the note recording its terms was signed at a time when counsel was instructed on her behalf. The pursuer did not dispute that the note accurately set out the settlement terms agreed by counsel purportedly on her behalf. The pursuer did not challenge counsel's mandate to act on her behalf at the relevant time. In any event, any such challenge would be inconsistent with the pursuer's complaint that the defenders were in breach of the settlement agreement by the manner in which they had affected payment. Nor does the pursuer dispute that the principal sum has been paid to SLAB.
5. Against this background, counsel for the defenders made the following submissions.

2. Payment to SLAB in terms of the applicable regulations and the legislative scheme amounted to payment to the pursuer.
3. Once settlement of an action is agreed, there is no basis for reduction simply because a party says that the amount of the settlement is inadequate.

In my opinion these submissions are correct. Submissions (2), (3) and (5) are self-evidently correct and I propose to say no more about them, save to note that counsel drew my attention, in support of submission (2), to Stewart v Kennedy 1819 17 R(HL) 25 and, in support of submission (5) to North British Railway Company v John Wood 1991 18 R(HL) 27 and John Dornan v James Allan 1900 3 F 112. I will, however, say something more about submissions (1) and (5).

1. Submission (1) raises the question of counsel's authority to enter into a settlement agreement on behalf of the pursuer. It was not, and could not be, disputed that counsel was instructed to act on behalf of the pursuer in the proof due to start on the day in question. This question only arises, therefore, if the pursuer is challenging the settlement agreement on the basis that counsel exceeded his authority in entering into such an agreement. It is not clear whether she does make such a challenge. But any challenge along these lines would, in my judgement, be bound to fail. I was referred to three authorities, namely Alexander Bachelor v George Handasyde Pattison 1876 3 R 914, Brodt v King 1991 S.L.T. 272 and William Gaw v Andrew Henry 1899 2 F 48. In Bachelor, the status and authority of an advocate was explained by the Lord President in a passage at page 918:


"An Advocate in undertaking the conduct of a cause in this Court enters into no contract with his client, but takes on himself an office in the performance of which he has a duty, not to his client only, but also to the Court, to the members of his own profession, and to the public. From this it follows that he is not at liberty to decline, except in very special circumstances, to act for any litigant who applies for his advice and aid, and that he is bound in any cause that comes into court to take the retainer of the party who first applies to him. It follows, also, that he cannot demand or recover by action any remuneration for his services, though in practice he receives honoraria in consideration of these services. Another result is, that while the client may get rid of his counsel whenever he pleases, and employ another, it is by no means easy for a counsel to get rid of his client. On the other hand, the nature of the advocate's office makes it clear that in the performance of his duty he must be entirely independent, and act according to his own discretion and judgement in the conduct of the cause for his client. His legal right is to conduct the cause without any regard to the wishes of his client, so long as his mandate is unrecalled, and what he does bona fides according to his own judgement will bind his client, and will not expose him to any action for what he has done, even if the client's interests are thereby prejudiced. These legal powers of counsel are seldom, if ever, exercised to the full extent, because counsel are restrained by consideration of propriety and expediency from doing so. But in such a case as this it is necessary to have in view what is the full extent of their legal powers." (emphasis added)



That passage was approved in Brodt, which concerned a settlement agreement concluded by exchange of solicitors' letters sent on the instructions of counsel. This agreement, so the Court held, contained matters collateral to and outwith the subject matter of the actions. Accordingly, the defender was not bound by it. The reasoning of the Court is couched in terms of distinguishing between judicial and extrajudicial settlements. Counsel has the right to settle a case by judicial settlement; but it does not follow that counsel has authority to enter into an extrajudicial settlement - see per Lord Justice-Clerk, Ross at page 274h-j. Lord Dunpark appears to adopt the same language. However, whatever the language used, it seems clear that the distinction being made between judicial and extrajudicial settlements is not a distinction based upon whether or not the settlement is made by an act in the Court process (such as lodging an acceptance of a tender in Court, or the interponing of the authority of the court to a joint Minute); rather the distinction is between settlements which are entered into as part of the ordinary conduct of the case and those which include matters extraneous thereto. That the distinction is not the more limited one is, to my mind, made clear by the citation in the opinion of Lord Dunpark of a passage from Lord Kyllachy in the unreported case of Sutherland v Mackenzie, 2 August 1897:



"It was not ultimately maintained that the defender's counsel had power without special authority to effect an extrajudicial settlement. The settlement by counsel made at the bar and communicated to the Court by joint Minute, or otherwise (in other words a judicial settlement) is, the Lord Ordinary has no doubt, at least in general, covered by the mandate constituted by counsel's gown. ..." (emphasis added)



That type of settlement is made not by the act of lodging in Court the joint Minute but by agreement which precedes the joint Minute. It follows that the settlement made in discussions between counsel which result in the settlement being communicated to the Court by joint Minute is as much a judicial settlement - and within the authority of counsel - as a settlement affected by lodging in Court an acceptance of tender. The distinction when applied to the question of counsel's authority between extrajudicial and judicial settlements is in reality a distinction between settlements falling full square within the ambit of the action and settlements which introduce extraneous matters. The former is within counsel's authority, the latter not. I am reinforced in this view by the remarks of the Lord Justice-Clerk in Gaw at page 51-52 which show that a settlement agreement need not contain words dealing in terms with the disposal of the action and will be binding even though the Court has not interponed its authority thereto.

2. In those circumstances, I consider that the defenders are correct in saying that in entering into the note containing the terms of settlement of the action the pursuer's counsel bound the pursuer. However, as I have indicated, this point is very likely to be wholly academic, since it is difficult to discern in the various documents lodged by the pursuer any indication that she is contending that her counsel acted outwith his authority at the time of entering into the settlement agreement.
3. Counsel's fourth submission related to the complaint that the payment of the principal sum agreed by way of settlement was paid to SLAB rather than to the pursuer. The pursuer's complaint on this point appears to me to reflect a misunderstanding by her of the process. I was referred by counsel for the defenders to the Civil Legal Aid (Scotland) Regulations 2002 which are made under, inter alia, Section 17(2B) of the Legal Aid (Scotland) Act 1986. Regulation 40 applies where, in any proceedings or under a settlement to avoid them or bring them to an end, any property is recovered or preserved for any party. The meaning of "property" there is apt to include money. This is consistent with other parts of the Regulations, in particular Regulation 40(3)(b)(i) which covers a situation "where the property consists of or includes a sum of money ...". In a case where Regulation 40 applies, Regulation 40(2)(3)(b) provides that the Board may take such action as it considers necessary to ensure payment of the amount of the net liability of the fund on account of that party out of such property; and, without prejudice to that generality, the Board may, by Regulation 40(3)(b)(i), require the party or the party's solicitor to pay that sum of money to the Board to be held and used by it in accordance with the subsequent paragraph of the Regulation. In other words, the Regulations contemplate that the Board may require any proceeds of settlement to be paid in the first instance to the Board which, subject to certain provisions, holds such property on behalf of or to the account of the consumer. It is this mechanism that has been implemented in the present case. The correspondence which I have referred to earlier in this Opinion between solicitors for the pursuer and for the defenders in respect of the payment of the cheque by the way of settlement makes it clear that the payment of a cheque made out in favour of SLAB was entirely in accordance with the expectations and with the approval of both parties. There can be no complaint about this.
4. In those circumstances I am satisfied not only that the pursuer is in default of the Rules of Court and of the interlocutors of the Court, but also that there is no substance to any of her objections to the settlement agreed between counsel. This appears simply to be a case where the pursuer is unhappy with the settlement that was made for her. That happens not infrequently, but it is not a basis for refusing to give effect to the settlement. There can be no prejudice in my acceding to a motion for decree by the defenders. I shall therefore sustain the third and fourth pleas-in-law for the defenders in their Minute, and grant decree in terms of the crave of the Minute declaring that the action has been settled in terms of the agreement concluded in writing on 29 June 2004. Given that the action is now, in terms of my interlocutor, settled, it follows that the period for lodging accounts is four months from the date of the interlocutor.
5. Although the pursuer is entitled to the expenses of the action in terms of the settlement agreement reached between the parties, the defenders and minuters are entitled to recover from the pursuer the expenses of the Minute procedure initiated by receipt of the defenders' Minute by Lady Paton on 7 December 2004.
6. Standing my decision on the defenders' motion, there is no subsisting action to which to "re-instate" any additional defenders. It follows that I refuse the pursuer's motion of 2 March 2005. Having regard to the fact that the limitation period has long expired, I would in any event have refused that motion in the exercise of my discretion, leaving it to the pursuer, if so advised, to commence new proceedings against those defenders. But I do not encourage such a course.