EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Carloway Lord Hardie Lord Brailsford	[2009] CSIH 81 XA39/08 OPINION OF THE COURT delivered by LORD CARLOWAY in causa ALEXANDER CHARLES REID and others Pursuers and Respondents; against NORNA FORSYTH CRABBE Defender and Appellant: _______

Act: Buchanan; Lindsays

Alt: Party

12 November 2009

1. Facts

[1] The parties are solicitors and were formerly partners in West Anderson & Co., Glasgow. They entered into an agreement, headed "Minute of Retiral", whereby the three pursuers would retire from the partnership on 31 January 1998 ("the retiral date"). The defender was to continue the business under its existing name as a sole practitioner. In settling the accounts of the firm, the Minute provides as follows:

"(THIRD) ACCOUNTS

(a) Accounts for the business for the year to [4 February 1997] have been prepared by [the Accountants] and have been approved by the [defender and the pursuers] as is confirmed by their respective signatures to a copy of the said Accounts...

(b) (i) For the period from [5 February 1997] to the retiral date Accounts for the business will be prepared by the Accountants on the same basis as in previous years but subject to work in progress as at the retiral date being brought in...and with the profit or loss being shared between the Partners in the same proportions as set forth in the Accounts to [4 February 1997].

(ii) Copies of the said Accounts to the retiral date are to be produced in draft by the Accountants and intimated to the Parties, who will be entitled to make representations, qualifications or enquiries regarding the said Accounts. Said representations, qualifications or enquiries shall be intimated within a period of 14 days following the receipt of said Accounts, after which date, the Accounts will be deemed to be final as between the parties hereto unless palpable or manifest error be thereafter discovered. Without prejudice to the foregoing generality, any representations, qualifications or enquiries which are not agreed by the parties will fall to be dealt with by means of arbitration...

...

(iv) Following on the approval of the said Accounts as aforesaid the [defender] shall remit to the [pursuers] the balances due to the [pursuers] under said Accounts and that within fourteen days of the Accounts being approved...".

It has been the interpretation and application of these few clauses that has resulted first in arbitration and secondly in litigation spanning the last ten years.

[2] On 26 January 1999, the accountants produced draft accounts for the period to the retiral date. The defender made representations concerning the accounts. These were not agreed and certain issues, in the form of five claims on the defender's part ((a) to (e)), were referred to arbitration. One of the claims was settled by joint minute. Following legal debate in February 2002, two of the claims were deemed irrelevant, but the two remaining claims were subject to an enquiry leading to a final decree arbitral on 5 June 2003. This decree did not, however, directly settle the figures to go into the accounts. Rather, it took the form of allowing certain elements of the defender's claims. The positive elements of the decree were as follows:

"1. Allows Head 7(1)(a) of claim...to the extent that Debit balances totalling £2333.64 are due to the Claimant by the Respondents...

...

3. Allows Head 7(1)(b) of claim for Delivery Fees to the extent £3322.47 which are due to the Claimant by the Respondents.

4. Allows Head 7(1)(c) of claim for expenses for [BG's] redundancy to the extent of £470 which is due to the Claimant by all parties as partners of the former firm...".

With the exception of a small sum of £148.91, paragraphs 1 and 3 did not require any alteration to the figures included in the draft accounts, since they were matters involving direct payment by the pursuers to the defender. However, the redundancy payment in paragraph 4 did require some adjustment.

[3] By letter dated 13 June 2003, the first pursuer requested the accountants to produce "Final Accounts". However, this request did not relate solely to revisals brought about by the decree arbitral. Other "adjustments" were mentioned, including changes to the work in progress figure, "write offs" in debit balances and a credit to a named individual ("[MH]") said to have been agreed by the parties. The accountants took little time in incorporating these matters into what they described as a "final version" of the accounts, which was sent to the first pursuer by letter dated 20 June 2003. These accounts were not sent to the defender until mid August. She responded by letter dated 21 August 2003, complaining first of the treatment of the payment to [MH]. She went on to take issue secondly with the figure included for the accountants' fees, which had been increased from the £9,000 in the original accounts to £10,480, the latter figure incorporating additional fees for work on the accounts after preparation of the original draft accounts. Thirdly, the defender raised the absence of a provision in respect of a potential professional negligence claim. Fourthly and finally, she complained about the work in progress adjustment proposed by the first pursuer in relation to one named client ("[JQ]"). The first pursuer responded to these complaints by letter to the accountants dated 16 October 2003.

[4] On 21 November 2003, the accountants produced a further "final" version of the accounts. This accommodated the defender's comments on the treatment of the credit due to [MH], retained the additional accountants' fees of £1,480, and took heed of the defender's point about [JQ's] work in progress (but cf the defender's pleadings infra). No specific financial provision was made for the potential claim for professional negligence in the figures, but a Note was appended identifying the potential liability. By letter dated 5 December 2003, the defender intimated to the accountants that she did "not accept the accounts".

2. The Action in the Sheriff Court

[5] In about August 2004, the pursuers raised an action against the defender in Glasgow Sheriff Court for payment of sums due in terms of the "final" November 2003 accounts. The case proceeded as a commercial action. The defender averred that:

"...the minute of retiral confers no authority upon the accountants to "deem" the accounts final. The accounts can only be finalised by agreement of the parties or by decree arbitral. The defender has not departed from the objections intimated to the draft accounts. These objections have not been ruled upon by the arbiter. The arbiter has pronounced no interlocutor declaring any set of accounts to be final or conclusive. The pursuers have no contractual right to payment of any sums until the accounts are finalised".

The defender's complaints related to three matters: the accountants' fees; the treatment of the professional negligence claim; and the work in progress relative to [JQ], which ought to have been written off as a bad debt. Since the accounts had not been "approved" in terms of Clause "THIRD(b)(iv)", no amount was due to the pursuers.

[6] By interlocutor dated 11 January 2005, pronounced after a debate, the Sheriff granted decree de plano in the pursuers' favour. The focus before the Sheriff, on pleadings which were to change subsequently, was on whether there could be more than one arbitration in terms of the Minute of Retiral. The Sheriff held that there could not. Thus, although it was accepted at the debate that the issue of professional negligence provision had been raised timeously by the defender, her failure to have it included in the Deed of Submission to the arbiter was fatal to raising it afresh after the decree arbitral. That disposed of the third matter raised by the defender in her letter of 21 August 2003. However, the Sheriff also held that, in relation to the other matters raised in the letter, the parties were agreed that the first point concerning the payment to [MH] had been properly dealt with in the accounts. The fourth point was not argued by the defender and was presumably also agreed as having been adequately treated. The third matter had been properly dealt with anyway and had caused no alteration to the accounts. The Sheriff decided that the accountants' fees could not have been challenged in any fresh arbitration. Since the Sheriff thereby held that there was effectively nothing to go to arbitration, even were a second arbitration to have been deemed competent, decree de plano based upon the November 2003 accounts had to follow.

[7] For reasons which will become clear (infra), the Court considers that the Sheriff's decision to grant decree de plano was the correct one. However, the action took a different course. The defender appealed to the Sheriff Principal. On 12 June 2006, the Sheriff Principal allowed the appeal and recalled the interlocutor of the Sheriff. He allowed a proof before answer on three narrow issues, viz.: "(1) the extent to which the accounts relied on by the pursuers differ from the original draft accounts; (2) the extent and timeousness of objections by the defender to the draft accounts; and (3) the extent of rulings by the arbiter appointed to deal with such objections". The Sheriff Principal recognised, as was indeed the case, that the dispute ought to have been resolved long before his involvement in it (para 18), but he considered that there was a "danger of injustice to the defender unless there is some further element of investigation". He accepted a submission from the defender that the Sheriff's focus on the number of arbitrations intended by the Minute of Retiral had been misplaced and that the real issue was the construction of the words "approval of the said accounts as aforesaid"; being the trigger mechanism in clause "THIRD (b)(iv)". The Sheriff Principal held (para 20) that once "disputed entries in the accounts have been dealt with at arbitration, the accounts will generally fall to be regarded as approved". However, he went on to express the view that it did not follow that accounts emerging after an arbitration were necessarily deemed approved or final. Thus, if there were new entries in such accounts, which had not been in the original draft, there was "scope for argument as to whether the accounts have or have not been approved" (para 21). If there was no new matter in the post arbitration accounts, the Sheriff Principal accepted that decree would again follow. If there was new matter, then that might require to be dealt with by a second arbitration.

[8] A proof before answer took place before a different Sheriff. Following this, the Sheriff determined the precise differences between the draft, pre-arbitration, accounts and the November 2003 accounts. He made appropriate findings in fact in that regard (findings in fact 2(a) to (g)). The Sheriff recorded accurately where the terms of the decree arbitral could be found and the nature and extent of defender's objections, in her letter of 21 August 2003, to the revised, June 2003, accounts. He found that the parties were agreed that the work in progress figure relative to [JQ] (the fourth complaint in the letter) had subsequently been properly dealt with in the November 2003 accounts (finding in fact (3)) as had the arbiter's decision on the redundancy payment to [BG] (finding in fact (4)). He found that the first complaint in the letter of 21 August 2003 (the treatment of the payment to [MH]) was also agreed and had been properly reflected in the November 2003 accounts (finding in fact (9)). The Sheriff found that the parties were not agreed upon two issues: first, the treatment of the accountants' fees; and, secondly, the need for a provision for the professional negligence claim (the second and third items in the letter). However, the Sheriff found "in fact and law" that neither of these two matters had been the subject of a valid objection by the defender and that "there exists no arbitrable dispute". He so decided because, amongst other things, both issues could have been raised in the arbitration, but neither had been. In relation to the accountants' fees, the figures were estimates and, if a reduced figure were ultimately determined to be due to the accountants (as the defender contended), this would produce a benefit to the defender. In relation to professional negligence, no claim against the former firm had ever been made and, were one to be intimated, it would be dealt with in terms of other provisions in the Minute of Retiral. In short there was no basis for making specific provision for it in the accounts. On 18 July 2007, the Sheriff granted decree in terms of the pursuers' craves.

[9] The defender appealed once more to the Sheriff Principal. This time, on 18 February 2008, the Sheriff Principal refused the appeal and adhered to the Sheriff's interlocutor. In doing so, although not expressing a view on the issue of "arbitrable dispute" (para 14), he held that the Sheriff's finding, that no new matter had arisen, was correct (paras 11 and 13). One curiosity about the appeal proceedings was that, after refusing the appeal, on 28 February 2008 the Sheriff Principal issued an interlocutor correcting the Note appended to the earlier interlocutor by deleting words which read "[The Sheriff] held that [the defender] had not given timeous representation concerning treatment of this matter in the final accounts". This was said to have been done in terms of Ordinary Cause Rule 12.2(2).

3. Submissions

[10] Detailed written submissions were lodged by both parties in advance of the appeal hearing. These can be consulted if necessary and only a summary of these submissions, as expanded or modified in oral debate, is provided here.

DEFENDER

[11] First, the Sheriff Principal had erred in finding that the accounts could be deemed final when they required to be "approved" by the parties. That meant, in terms of clause "THIRD (a)", that they had to be signed by the parties. If there were new matter in accounts drawn up, either party could make representations which, if not accepted by the other, would require arbitration. The parties could have employed a mechanism whereby an accountant could have been appointed arbiter to settle the accounts. That had not been done. It had been accepted that, following upon the arbitration, the accountants would require to redraft the accounts; such new accounts again requiring approval. That had been the original view of the Sheriff Principal, when he recalled the interlocutor of the Sheriff granting decree de plano. The proof had demonstrated that the November 2003 accounts had not been approved. The defender had made representations about them, notably in relation to the accountants' fees, the professional negligence claim and the [JQ] work in progress. Since there had been no agreement about these matters, arbitration was required before the accounts could be deemed approved. Accordingly, since there had been no approval, no money was due by the defender. The action was premature and ought to be dismissed.

[12] Secondly, the Sheriff, who had heard the proof, had exceeded the remit from the Sheriff Principal by determining matters which ought to have been the subject of arbitration. It had not been part of his remit to determine whether any outstanding matters were arbitrable or whether the pursuers would be successful should an arbitration take place. Thirdly, the Sheriff had not fulfilled his remit. He had failed to make findings in fact on the extent and "timeousness" of the defender's objections. In his Note, however, he had accepted that the defender's objections had been timeous. The Sheriff had also failed to make findings in fact on the extent of the arbiter's rulings on the objections.

[13] Fourthly, the Sheriff Principal had erred in correcting his Note after the issue of his judgment. The Summary Cause Rules allowed him to correct clerical or incidental errors prior to the issue of his interlocutor. This was not such a correction, but one which deleted a whole sentence. When reaching his decision, the Sheriff Principal had clearly thought that the Sheriff had held that the objections had not been timeous, but that was not the case.

[14] Fifthly, the Sheriff Principal and the Sheriff had erred in holding that there were annual "accruals" of accountants' fees in the partnership accounts. What had happened in the past was that, when the accounts were being finalised, the accountants would contact the defender and a fee would be agreed. The amount in the November 2003 accounts included work post draft accounts, which could not therefore have been part of the original submission. The figure in these accounts was also wrong. The accountants had overcharged by £1,000, when including the original fee of £9,000. Sixthly, the Sheriff had erred in holding that there was no difference between the accounts in relation to their treatment of the professional indemnity claim. Finally, although not specifically a ground of appeal, the Sheriff had erred in failing to certify the cause as suitable for the employment of senior, as distinct from junior, counsel. The Sheriff had refused to discharge the diet of proof, which he had fixed in the knowledge that the defender's junior counsel would not be available. The defender had selected a senior counsel, whom she considered to be of equivalent standing to the pursuers' junior counsel.

PURSUERS

[15] There were three sets of accounts: the pre-arbitration January 1999 draft; the post arbitration June 2003 version and the final November 2003 set. Decree was sought on the basis of the last set. The arbitration had proceeded on the original draft, but had covered matters extraneous to the accounts. The arbiter had exhausted his remit, leaving the parties to apply to the accountants for new accounts based on the decree arbitral. The parties had done that. The accountants had said that they should include a fee for work post original draft accounts and the pursuers had been content with that. But the figure of £10,480 was an accrual, in the sense of it containing an element of estimation. Were the actual fees to be less, then this would benefit the defender since there would be credit in the next year's accounts. The defender had effectively been given an allowance of £10,480 to pay the accountants, yet her complaint was that the fee should be less. She had had the opportunity to challenge the original sum of £9,000 at the stage of the arbitration, but had not done so.

[16] In her letter of 21 August 2003, the defender had made representations in respect of the new accounts, which had incorporated the arbiter's findings. Her first and fourth complaints (the treatment of the payment to [MH] and the [JQ] work in progress) had been accommodated, leaving only the accountants' fees and the professional negligence claim. The pursuers, by way of concession, had accepted the addition to the accountants' fee. The issue of professional negligence was not new, since the pursuer had been aware of it prior to the arbitration. Indeed, costs relative to that claim had been disallowed in the arbitration. Thus the absence of a provision for the claim could not form a valid objection to the accounts. Furthermore, the Minute of Retiral provided elsewhere for what was to happen in the event of a negligence claim. Thus, there was no need to make provision for it in the accounts. In any event, in evidence, the defender's own accountant had accepted that the appropriate provision would be a Note, as had been included.

[17] The scheme in the Minute of Retiral, of a summary process for the finalisation of accounts, had failed. The scheme had been for draft accounts to be drawn up and intimated. Parties then had a short period in which to make representations after which, subject to arbitration, the accounts would be deemed to be final; that is deemed approved. The true meaning of clause "THIRD (b)(iv)" could be discovered by holding the opening words "Following on the approval of the said Accounts as aforesaid" to be superfluous.

[18] The Sheriff had followed the remit given to him by the Sheriff Principal. The Sheriff Principal had been entitled to alter his Note, since that was not part of the interlocutor, which remained unchanged. The Sheriff had exercised his discretion appropriately in sanctioning only junior counsel for the proof.

4. Decision

[19] There is perhaps a lack of precision in the use of language in clause "THIRD (b)" of the Minute of Retiral, but it is a commercial bargain, albeit between solicitors, and not a conveyancing document. Its meaning is clear enough. The clause opens (sub-clause (i)) with the substantive provision that accounts are to be prepared by a named firm of accountants in the same manner as in previous years, subject to the inclusion of work in progress, with the profits to be shared in the same proportions as in the previous year's accounts. That is the critical provision. What follows is essentially procedural in nature. This procedure is that draft accounts are to be intimated and parties can make representations within a short fourteen day period. If no such representations are made then the accounts are "deemed to be final". In terms of sub-clause (ii), if representations are made, which are not agreed, then they become subject to arbitration. However, the arbitration provision is specifically "Without prejudice to" finality after fourteen days. The effect is that the accounts are deemed final after the fourteen days, albeit subject to alteration by agreement or decree arbitral in due course.

[20] Sub-clause (b) (iv) deals with the time for payment. It too is procedural in nature. It does not alter the basic content of the substantive sub-clause (b)(i), which provides for the division of profits brought about by the year's accounts. Were sub-clause (b)(iv) to have been omitted entirely, there would still have been a contractual obligation to make payment one way or another upon settlement of the accounts. In this area, the Court does not agree with the Sheriff Principal's agreement with the defender, when recalling the original decree de plano, that the real issue was the construction of the words "approval of the said accounts as aforesaid" in this sub-clause. It is slightly unfortunate that the sub-clause uses the phrases "Following on the approval of the said Accounts as aforesaid" and "Accounts being approved", given that the rest of sub-clause (b) does not refer to "approval" of accounts at all, but to accounts being deemed "final". It is also true that sub-clause (a) refers to the previous year's accounts having "been approved" by the parties as "confirmed by their respective signatures". But the combination of the use of "approved" and "approval" in sub-clauses (a) and (b)(iv) respectively cannot be prayed in aid of a construction that payment is not due in the absence of approval, whether confirmed by signature or indeed otherwise. If it did, it would lead to the absurd result that payment would not be due until the party, who held the other's profits, approved the accounts which quantified his liability.

[21] The meaning of sub-clause (b), read as a whole, is thus that payment is due within fourteen days of the accounts becoming "final" by virtue of sub-clause (b)(ii). There is no room for two or more arbitrations. Once the accounts have been drafted and intimated, if a party makes timeous representations, which are not thereafter agreed, then these representations alone will form the material for arbitration under sub-clause (b)(ii). Exhaustion of the submission to arbitration by decree arbitral brings an end to the procedure of finalising the ultimate form of accounts. That is what sub-clause (b) was intended to achieve. That it did not do so was because of the manner in which the parties conducted their affairs both before and after the arbitration. First, the submission to the arbiter did not take the form of a request that the arbiter settle the disputed figures in the accounts. Had it done so, and had the decree arbitral been pronounced accordingly, it is difficult to see what valid legal argument could have been advanced in a Sheriff Court process to challenge the form of accounts. Be that as it may, given the limited effect of the decree arbitral on the original draft accounts, the fact that the decree did not directly settle the figures ought to have been of peripheral significance. The accountants ought to have been able to have made simple adjustments based solely on the decree arbitral and any earlier agreements on timeous representations. The pursuers would then have been entitled to payment of any balance of unpaid profit calculated accordingly in terms of sub-clause (b)(i). That entitlement would have flowed not from the act of the accountants in drafting revised accounts but from the terms of sub-clause (b)(i) coupled with the accuracy of the accountants' revisals of the original draft accounts consequent to the decree arbitral and any earlier agreements. Thus, it would only be if the revisals did accurately reflect the effect of the decree arbitral and those agreements that the pursuers would be entitled to payment of any sum based upon the revised calculation of profit. Either the revised accounts would be correct or they would not and, if necessary, a Court would have to rule on that matter and make any adjustments. The Court agrees, in this context, with the Sheriff Principal's view, when recalling the original decree, that the defender could object to "new matter" in the revised accounts. It does not agree, however, that this could lead to another arbitration. The decree arbitral ought to have marked the end of the affair. In short, after the decree arbitral, the pursuers were entitled to payment based upon the original draft accounts as altered in terms of the decree and any earlier agreements. That is what they are still entitled to, in the absence of actings barring that claim or part of it.

[22] Instead of proceeding in terms of the Minute of Retiral, the parties chose a different route, no doubt for good reasons as they then perceived matters. It has been the assessment of the legal consequences of the change in direction that has, at least in part, prompted this protracted and, no doubt, expensive litigation. First, it appears (although this is not entirely clear) that the first pursuer, when requesting a revised version of accounts in his letter of 13 June 2003, did not request a revisal based solely on the arbiter's findings and any agreements upon timeous representations, as should have been the case. He appears to have requested that other items be taken into account by way of "adjustments". Secondly, and of greater consequence, in responding to the revised accounts in her letter of 21 August 2003, the defender raised four matters. In so far as these might have complained about changes to the original draft accounts, brought upon by matters not related to the decree arbitral or any earlier agreements, these would have constituted sound objections and could have formed a legitimate defence to any action for payment based upon the revised accounts. They could not, however, have grounded a case for a further arbitration; the arbitration provisions under clause "THIRD (b)(ii)" having been exhausted. In so far as the defender's complaints themselves raised matters not relating to changes in the accounts brought about by the decree arbitral or any earlier agreements, they too would not have been sound in law. What is now required is for this legal analysis to be applied to the facts.

[23] If the revised November 2003 accounts, upon which the action is based, properly reflect the effect of the decree arbitral and any earlier agreements upon the original draft accounts, the pursuers are entitled to payment as craved. If they do not, in the sense of producing a greater sum as due to the pursuers, the pursuers would not be entitled to such a decree. The pursuers would still be entitled to decree if the accounts erred in the defender's favour. The extent of the dispute in this regard is ultimately a narrow one. It involves an analysis of the points raised by the defender in her letter of 21 August 2003; these points being also reflected in the defender's averments in answer.

[24] In reaching its conclusions on each of the matters raised, the Court is in substantial agreement with the Sheriff who granted decree de plano on 11 January 2005. As he observed, by the time the matter was litigated, there was no issue about the proper treatment of the payment to [MH] (the first point in the letter) or the work in progress adjustment in relation to [JQ] (the fourth point). There were thus only two points in issue. The first of these was the proper treatment of the potential claim for professional negligence. This had not formed the basis of any claim in the submission to the arbiter. That being so, the decree arbitral made no mention of it and no adjustment to the original accounts could have been made on the basis of a contention that the original accounts ought to have mentioned it. Furthermore, it is clear from the evidence of the accountants that, at best for the defender, the way it was treated, by way of a Note in the final November 2003 accounts, was the correct one. This made no difference to the ultimate profit figures.

[25] The figure for accountants' fees in the original draft accounts was £9,000. This was not challenged by the defender at the stage of making representations or in the subsequent arbitration. It was too late to challenge any inaccuracy in that element of the fees thereafter. In the revised accounts, the accountants increased the amount by £1,480 for their post draft accounts work. In so far as there is now a provision greater than in the draft accounts, the profit due to the pursuers is decreased. This is of advantage to the defender. The pursuers appear to have conceded the point in instructing the revised accounts and, reasonably, have not sought to depart from that concession. But it cannot form a defence to their claim for payment that they are due more than they are asking for.

[26] In short, there is, and never has been, a relevant defence to this action and decree de plano was the correct result. However, the matter proceeded to proof before answer, after which a substantive decree for the same amounts was granted. The Court will accordingly refuse the appeal and adhere to the interlocutor of the Sheriff Principal dated 18 February 2008, which in turn adhered to the Sheriff's interlocutor of 18 July 2007, granting decree in terms of the craves and making relevant findings in fact.

[27] It remains for the Court to address certain subsidiary points raised by the defender, although these cannot ultimately affect the outcome of the case, standing the approach of the Court. Suffice it to say that the Court does not consider that the Sheriff, to whom the case was remitted upon the allowance of the original appeal, either failed to exhaust or exceeded his remit. Although this was a commercial cause, where there is a degree of flexibility in ordinary court procedure, the operative element of the Sheriff Principal's interlocutor of 12 June 2006 was to allow the appeal by recalling the Sheriff's interlocutor granting decree de plano and instead allowing a proof before answer, albeit restricted to certain narrow issues of fact. The Sheriff Principal was not remitting the cause in any specialist sense. Rather the cause was returned for determination by the Sheriff after proof before answer in the normal way. The Sheriff made appropriate findings in respect of the three particular areas mentioned by the Sheriff Principal. In particular, he stipulated the manner in which the two sets of accounts differed (this being, in any event, clear from a simple examination of those accounts). He made findings on the nature, extent and timing of the defender's representations and upon the extent of the arbiter's rulings (these again being apparent from an examination of the decree arbitral itself). He did go on to find that there was no "arbitrable" dispute; a matter not necessarily concurred in by the Sheriff Principal. But that assumes that there was scope for multiple arbitration on the accounts; this Court holding that no such scope exists. The correction of the Sheriff Principal's Note some time after its issue was certainly unusual, but it was an accurate revisal, which did not affect the terms of the interlocutor already pronounced. Rule 12.2.(2) permits correction prior to extract (not issue) and, in that regard, the procedure adopted was competent to cure an incidental error. It did result in a degree of grammatical inexactitude but, in the event, this matter has no bearing on this Court's view of the merits of the pursuers' claim. Finally, the Sheriff acted within his discretion in determining the appropriate level of sanction for counsel in accordance with practice. He might have sanctioned senior counsel, but the financial craves hardly justified such a course. The issue was whether the cause merited the sanction; not whether extraneous circumstances reasonably prompted the particular instruction.