Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 117
A431/11	OPINION OF LORD STEWART in the cause MARK DONAGHY trading as ARENA SPORTS MANAGEMENT Pursuer; against DAVID GOODWILLIE Defender: ________________

Pursuer: G MacColl advocate; McClure Naismith LLP

Respondent: R W Dunlop QC; Harper McLeod LLP

10 July 2013

[1] The defender is a professional footballer who, until 2011, played for Dundee United Football Club. The pursuer is a "Licensed Players' Agent". In August 2011 the defender transferred from Dundee United to Blackburn Rovers Football Club. The transfer fee was reported in the press at the time to be £2,000,000. The pursuer claims that he had an exclusive agency agreement with the defender for the purpose of negotiating any transfer from Dundee United to another club. The dispute arises because the defender used another agent to negotiate his transfer to Blackburn Rovers. As a result, the pursuer claims, he missed out on a commission of £400,000 which would have been paid to him, he says, by Blackburn Rovers. The pursuer is now claiming the sum of £400,000 from the defender in damages for breach of contract.

[2] The case called before me on the procedure roll on 6 February 2013 when senior counsel for the defender moved me to dismiss the action for irrelevancy. Pursuer's counsel opposed the motion and invited me to allow a proof before answer, reserving all pleas. I should record that the debate proceeded on the closed record as amended in manuscript (February 2013) no 23 of process, the defender's second note of argument no 20 of process (under exception of paragraph 1) and the joint minute of agreement no 22 of process. Having made avizandum I have now decided that the action should be sent for proof before answer, reserving all pleas. This is because in my view, as explained below, the action as pled is not plainly irrelevant [Jamieson v Jamieson 1952 SC (HL) 44].

Defender's submissions

[3] On 29 March 2011 the pursuer and the defender signed a document in the following terms:

"I David Goodwillie born 28-03-89 hereby authorise Licensed Players' Agent Mark Donaghy to act exclusively on my behalf as my Lawful Agent and Representative to negotiate in my name all conditions with my current club Dundee United FC and future transfer to any other club.

This agreement will commence on 29^th of March 2011 and end on 01^st September 2011."

It is immediately obvious that the "mandate", as senior counsel for the defender called it, does not make provision, or at least any express provision for remuneration. The other noticeable point is that the pursuer is described as "Licensed Players' Agent" which begs the question: "licensed by whom and for what purpose?"

[4] Looking to the matter of "Licensed Players' Agent", senior counsel for the defender sought to persuade me of two points: first, that "Licensed Players' Agent" is an expression of art in Association Football circles which means, in Scotland, "a players' agent licensed by the Scottish Football Association" in terms of the Scottish Football Association [SFA] Players' Agents Regulations; and, secondly, that as a matter of construction the "mandate" has to be read as being "subject to" the provisions of the SFA Players' Agents Regulations in force for the time being. The first point I can accept. Some meaning has to be assigned to the phrase "Licensed Players' Agent" whether capitalised or not. No other meaning has been contended for. Just to be quite clear, the SFA Players' Agents Regulations May 2011, which are said to have been in force at the material time, define "Players' Agent" for the purpose of the regulations as [Definitions]:

"... a person holding a current agent's licence issued by the Association who for reward represents, negotiates on behalf of, advises or otherwise acts for a player or a member club in the context of either the transfer of a player's registration or the terms of a current or proposed contract between a player and a member club."

The actual phrase "licenced [sic] players' agent(s)", uncapitalised, appears a dozen times in the Regulations. It may be of particular significance in the present context that clause 12.1 of the SFA Regulations provides: "A player may only engage the services of a licenced [sic] player's agent to represent him in the negotiation or renegotiation of an [sic] player's contract/ employment agreement the exceptions stated in Clause 1.2(a) [sic]." The pursuer was a players' agent licensed as such by the SFA at the material time. Applicants for players' agents' licences become subject to the terms of the Regulations [cl. 2.4]. I have not seen the pursuer's licence and I was not told whether agents are bound on the face of the licence to comply with the SFA Regulations [cf. Stretford v Football Association Ltd [2007] EWCA Civ 238 at § 3].

[5] The issue of construction presents more difficulty. The difficulty does not lie in the legal principles. Parties are in agreement as to the legal principles derived by senior counsel for the defender from the case law. The principles are expressed by senior counsel as follows: the aim of the court in construing a disputed commercial contract is to ascertain objectively the intention of the parties; for this purpose the court must put itself in the position of a reasonable person in possession of all the background information reasonably available to the contracting parties; in the event of doubt the court should prefer the commercially sensible interpretation [Reardon Smith Line Ltd v Hansen-Tangen [1976] 1 WLR 989 at 995G-997D per Lord Wilberforce with whom Lord Simon of Glaisdale and Lord Kilbrandon agreed; Liverpool City Council v Irwin [1977] AC 239 at 253D-E per Lord Wilberforce; City Wall Properties (Scotland) Ltd v Pearl Assurance Plc [2007] CSIH 79 at §§ 22-24 per Lord Philip; Multi-Link Leisure Developments Ltd v North Lanarkshire Council 2011 SC (UKSC) 53 at 53 (rubric) and §§ 19-22 per Lord Hope of Craighead DPSC; Rainy Sky SA v Kookmin Bank [2011] 1WLR 2900 at §§ 14, 15, 21, 25 ].

[6] The difficulty arises with the next stage of the argument. Senior counsel submitted that a sound construction of the "mandate" in accordance with the agreed principles necessarily leads to the conclusion that parties intended the mandate to be "subject to" the SFA Regulations [version in force at May 2011]. The SFA Regulations provide that a players' agent may only represent the interests of a player if the agent has concluded a "Representation Contract" and if the representation contract, signed in quadruplicate, is registered with the SFA [cls. 10.1 and 10.5]. A representation contract must contain agreements about the agent's fee; and if there is no agreement the default provision of the Regulations applies [cls. 10.3 and 13.3(d)]. The default provision is to the effect that, absent agreement as to the amount of remuneration in relation to a player's transfer, then the agent is entitled to payment of compensation amounting to 3% of the player's annual basic gross income including any signing-on fee [cls. 13.3(a) and 13.3(d)]. The defender's argument is that, at best for the pursuer, the pursuer is or was contractually entitled to remuneration in terms of the default provision. Since the pursuer is suing for something else entirely, namely a lost commission of £400,000 calculated, if calculated at all, on an undisclosed basis, then the action must fail. I say "at best for the pursuer". In fact the "mandate" was not registered with the SFA as a representation contract. Non-registration, according to senior counsel, is fatal to the claim, because, without a registered representation contract the pursuer was not entitled or empowered by the regulations to act as an agent for the defender.

[7] In response to the submissions by counsel for the pursuer, senior counsel invited me to consider the position were the pursuer to have been designed as a "solicitor authorised to practise in Scotland" and mandated in that capacity to act as the defender's solicitor. Senior counsel submitted that such wording would necessarily import the norms applicable to solicitors, the Law Society of Scotland's practice rules. Objectively, said senior counsel, the parties must be thought to have agreed that the SFA Regulations were intended to apply where they described the pursuer as a "Licensed Players' Agent" and agreed that he was to "act exclusively" as the defender's "Lawful Agent". The approach advocated by pursuer's counsel was a subjective one and was contrary to the agreed principles of construction.

[8] A related submission made by senior counsel for the defender was that the averments about the causation of the pursuer's claimed loss are irrelevant. Blackburn Rovers is a member of the English Football Association [FA]. Therefore, said senior counsel, that club is bound by the FA Players' Agents Regulations [version in force at May 2011]. Senior counsel submitted, to put it shortly, that the FA Regulations prohibit the carrying out of agency activity by licensed agents except as provided for by the FA Regulations and prohibit the making of payments by clubs to players' agents for agency activity unless the activity is carried out by a licensed agent acting under and in terms of a written "Representation Contract" [cls. A(1), B(1) and (2), G(5), H(1), J(1) and (2), Appendix 1 Definitions ("Agency Activity", "Authorised Agent", "National Association", "Registered Overseas Agent", "representation agreement", "Representation Contract", "Standard Representation Contract")]. A copy of the FA Standard Representation Contract including obligatory terms has been produced: it is clear that the "mandate" in this case is non-compliant in a number of respects including the fact that it does not contain the obligatory remuneration clause [cl. 7]. Senior counsel told me that it is his understanding that the pursuer is a players' agent licensed by both the FA and the SFA; and counsel for the pursuer did not dispute this. If, the submission continued, it is the pursuer's position that Blackburn Rovers would have paid him commission in breach of the FA Regulations, he should offer to prove that fact in terms. Without such an averment no relevant cause of loss is stated.

[9] The FA Regulations stipulate that: "The Representation Contract must contain the entire agreement between the parties in relation to the Agency Activity..." [cl. B(2)]. In the present case, following amendment, the pursuer avers that:

"The Agreement did not, within the four corners of the document, make any express provision for the remuneration of the pursuer. The pursuer was however entitled to reasonable remuneration from the defender for the provision of agency services. In this regard, the pursuer indicated to the defender that he would be content to be remunerated by agreeing a payment with any club to which the defender transferred; and the defender was content to proceed on that basis. These discussions between the pursuer and the defender in relation to remuneration took place on 29 March 2011, shortly before the execution by the defender of the Agreement."

The defender's complaint initially was that the averments just quoted appear to be about pre-contract negotiations and are therefore irrelevant. At the bar counsel for the pursuer stated the position to be that the contract was partly written and partly oral. The complaint made by senior counsel for the defender then came to be that, apart from anything else, there was insufficient specification of the circumstances of the agreement: it was not adequate for pursuer's counsel to tell the Court during the debate that the agreement about remuneration was made at the Burger King fast-food restaurant near Stirling, referred to in the pleadings, immediately before the "mandate" was signed there.

[10] Senior counsel for the defender also challenged the relevancy of the pursuer's subsidiary and alternative case of personal bar (see below). Senior counsel submitted that the classic test for personal bar was not capable of being satisfied on the pursuer's averments [Gatty v MacLaine 1921 SC (HL) 1 at 7 per the Lord Chancellor]. If the pursuer had, as he averred, provided services gratuitously in the expectation of receiving remuneration for negotiating the defender's transfer, the pursuer had not suffered prejudice: the pursuer was still entitled to claim quantum meruit for the services actually provided. In any event a plea of bar might be used as a shield but it was not available as a sword: if the pursuer were disempowered from acting as a paid agent by the SFA Regulations he could not reasonably rely on the defender's actings to found a claim for payment [Shaw v James Scott Builders & Co [2010] CSOH 68 at §§ 63―64]. The pursuer knew well in advance that another agent was negotiating the defender's transfer to Blackburn Rovers so that he cannot, by personal bar, set up a claim for commission.

Pursuer's submissions

[11] Counsel for the pursuer submitted that the "mandate" simply describes the pursuer as "Licensed Players' Agent" (as it might have said "Minister of Religion" or "Naval Officer" or "Agricultural Labourer"). The pursuer was not appointed as such. He was appointed by the defender as "my Lawful Agent and Representative". Counsel submitted that the defender does not challenge the existence of a contract at common law. What the defender is trying to do is to incorporate institutional regulations into a private bargain as if they have quasi-edictal effect. Whether or not individuals choose to sign up to the SFA Regulations is for them to decide. If they do sign up, the question of compliance or non-compliance is a matter between them and the SFA. Otherwise as between the contracting parties the SFA Regulations, if not incorporated, are res inter alios acta. The bargain between the contracting parties is not invalidated by non-compliance with regulations which are not incorporated. The Court has an interest in seeing that bargains are upheld; and the FA Regulations binding on Blackburn Rovers should not be allowed to override the contract between the pursuer and the defender.

[12] Counsel referred to the pursuer's averment: "The pursuer was however entitled to reasonable remuneration from the defender for the provision of agency services." Counsel described the averment as "inopportune" meaning, I suppose, that it was a blunder. The correct understanding, counsel submitted, is that the contract was partly oral and partly in writing; and that there was an express term as to remuneration, though not in writing. The express oral stipulation was that the pursuer's remuneration would be whatever payment the pursuer could agree with any club to which the defender transferred. When I asked about the repeated use of the term "the Agreement", meaning the "written exclusive agency agreement" counsel told me that at page 5D-E of the closed record where the word "Agreement" appears four times, it should be understood to mean "the bargain between the parties", that is the bargain including the oral stipulation.

[13] Counsel for the pursuer accepted that Blackburn Rovers could not have made a payment to the pursuer in a manner that was compliant with the FA Regulations: but, he said, Blackburn Rovers could and would nonetheless have made a payment - that is what the pursuer offers to prove. The pursuer avers:

"... in the football agent industry, it is commonplace for football agents to act on behalf of footballers and receive remuneration therefor (from clubs) without the agent having any signed or registered representation contract in place... the pursuer would have secured the defender at least as favourable a transfer package with Blackburn Rovers Football Club and then the Pursuer would have earned a commission upon the transfer of the Defender to Blackburn Rovers Football Club taking place... the absence of a registered representation contract between the pursuer and defender would not have precluded the pursuer either from negotiating a transfer to Blackburn Rovers or from obtaining remuneration in respect of that transfer from that club."

[14] The pursuer accepts that the contract - as I am now meant to understand it - was unregistrable and unregistered in terms of the SFA Regulations because it was not in writing i.e. not wholly in writing: but the contract was implemented by the pursuer to the extent of negotiating an enhanced contract for the defender with Dundee United and performing ancillary services. The defender's transfer and the pursuer's payment would have gone through smoothly if the defender had not, unusually, counsel said, appointed another agent.

[15] I was led to understand that the appointment of another agent in place of the pursuer came about because the defender was facing a charge of rape in the High Court of Justiciary. Counsel told me that the solicitor acting for the defender in the criminal proceedings proposed to waive the legal fees in return for the opportunity to act as the defender's agent in negotiations for the defender's transfer to Blackburn Rovers. The pursuer avers that it was someone linked with the solicitor who eventually acted as the defender's agent; and that the agent negotiated a commission with Blackburn Rovers of at least £225,000. The criminal charge against the defender was ultimately dropped.

[16] The pursuer has a subsidiary and alternative case to the effect that if the mandate would otherwise be "formally invalid" the defender is personally barred from asserting that the pursuer was not his exclusive agent. This case depends on the averments that on the faith of the mandate the pursuer provided a number of services gratuitously for the defender, which the defender encouraged him to do, in the expectation that the defender would soon move to a new club, "at which point the pursuer would be able to recoup a fee for his agency activities". The services provided included, it is averred, the negotiation of an enhanced contract for the defender with Dundee United. (The pursuer has not tabled a distinct plea in support of this subsidiary case but senior counsel for the defender did not argue that the case should be rejected because of the missing plea.)

[17] Counsel for the pursuer accepted the classic personal bar test as stated by Lord Chancellor Birkenhead in Gatty. His submission was that the pursuer does not rely on the defender's actings to constitute the contract [cf. Shaw v James Scott Builders & Co [2010] CSOH 68 at §§ 63―64; Braes v Keeper of the Registers of Scotland 2010 SLT 689 at § 83]: the pursuer relies on the defender's actings to prevent the defender withdrawing from the agreement which parties had acted on to the pursuer's prejudice. The personal bar case supports the enforceability of an otherwise, on the defender's argument, formally defective ― because unregistered ― agency contract. The averments of reliance and prejudice are sufficient to allow the subsidiary and alternative case to proceed.

Discussion and decision

[18] Unquestionably in my opinion the written "Agreement" is an exclusive "mandate" for the stated agency activities. The first issue here is about the consequence - as a matter of legal principle and apart from the regulatory framework - of the non-inclusion of a term as to remuneration where the agent's commission is to be paid, not by the principal, but by a third party. Counsel did not address me on this point. In the absence of any submissions to the contrary, given the averment that the defender was content with the arrangement and given also that the practice is said to be commonplace in the industry, I believe I must hold that the contract is, on the pleadings, prima facie enforceable between the parties as it stands without a remuneration clause. There is no suggestion by the defender that such a payment would have been an undisclosed "secret commission" for which the agent would be bound to account. The impression that I have formed is that some services were meant to be provided gratuitously on the understanding that the pursuer would in due course make a profit from the expected transfer. I asked senior counsel for the defender what would have been the measure of remuneration, if the pursuer had actually negotiated the transfer acting under the mandate. Senior counsel suggested quantum lucratus or quantum meruit. I do not think this is correct: the remuneration would have been, on the pleadings, whatever commission the pursuer could have negotiated with Blackburn Rovers [Great Western Insurance Co v Cunliffe (1873-74) LR 9 Ch App 525].

[19] The second issue is about the effect of the regulatory framework on the contract, if any. I was addressed at length by senior counsel for the defender on the question of "construction" in the sense of the import of the terms actually used in the document. Senior counsel categorically disowned any idea that the regulations were "incorporated" into the contract. Senior counsel's submission was that on a proper construction the regulations "apply", although without addressing distinctly the separate questions of the extent to which the regulations govern the contract as between the parties and the extent to which the regulations govern relations between the pursuer and the SFA. (Senior counsel did not suggest that the regulations govern relations between the defender and the SFA.) Neither side referred me to the cases about "incorporation" of extraneous terms not expressly and specifically subscribed to by the parties.

[20] Senior counsel's submission pushed the boundaries of the "business efficacy" or "commercial common sense" construction of ambiguous contract terms. The rationale of the "commercial common sense" approach is to yield a meaning that allows the contract to work effectively. The effect of construing the mandate in the present case in such a way that the regulations "apply" would be, on senior counsel's primary submission, to make the "mandate" a dead letter. The defender's position is that the mandate was unregistrable in terms of the regulations, actually unregistered and, because unregistered, not binding on him. I gather that, at least at one time, both parties intended, subjectively, this mandate to work; and, as counsel for the pursuer submitted, it is odd to ascribe an objective intention to the contracting parties that their contract should not work at all. The question does occur: should the idea of "commercial common sense" extend to making contracts unworkable when, and for the reason that, they do not conform with sectoral norms of good practice? If the SFA Regulations are meant to protect players from exploitation, then the idea has some attraction: but the point was not argued. Having looked at the solicitors' practice rules, I do not think that the supposed analogy with solicitors who are already in an agent-client relationship is a persuasive one.

[21] As I say, the issue was presented as being about the "application" of the regulations, not about the "incorporation" of the regulations into the parties' bargain. If the issue were about incorporation I should be left in uncertainty as to how to resolve it on the material that has been presented. The "mandate" was of course executed on 29 March 2011. Copies of the various regulations produced - SFA, FA and FIFA - are inventoried for the defender as being "in force at May 2011". The Joint Minute agrees that these documents are copies of the respective regulations "as applicable at all times material to the present action". This would not make sense if incorporation were being argued for: I say this on the understanding that, as a rule, documents have to exist before they can be incorporated [cf. Smith v UMB Chrysler (Scotland) Ltd 1978 SC (HL) 1].

[22] Senior counsel told me that there is no case that decides that extraneous rules govern a contract as a matter of "construction". Both counsel, I think, told me that there are no footballing cases in point; and this may well be true if what is meant that there are no cases directly in point. On the other hand it is interesting to see an example of a football agency contract in another case. In Burridge the agency agreement between West Ham and the agent stated the agent "to be registered with the FA as a player's agent and to be in possession of a licence issued in accordance with FIFA for that purpose"; and further provided, expressly, that the agent was bound to comply with the FA Regulations [Burridge v MPH Soccer Management Ltd
[2011] EWCA Civ 835 at § 7]. Let me ask: why should parties in Burridge have made express provision for compliance with the regulations if, as the defender contends here, the regulations apply by implication?

[23] If the regulations do apply, what is the effect of the absence of a remuneration clause? The SFA Regulations have to be read in conjunction with the FIFA Regulations [Preamble]. The FIFA Regulations prescribe the content of representation contracts. Representation contracts "shall explicitly state who is responsible for paying the players' agent" and "must contain... the remuneration due to the players' agent" and "the general terms of payment" [cl. 19.4 and 19.5]. These imperatives, "shall" and "must", are qualified. Clause 10.3 of the SFA Regulations following the FIFA Regulations, clause 20.4, makes the qualification as follows:

"The Representation Contract must contain agreements about the fee payable by the contracting party to the Players' Agent. If the contract does not contain any agreements about the fee, Clause 13.3(d) will be applicable."

Clause 13.3(d) is the default remuneration provision. It applies where parties cannot agree the amount of remuneration or where the representation contract does not stipulate the amount.

[24] There is an apparent inconsistency between the requirement for payment terms to be included and the default provision, which contemplates the non-inclusion of payment terms. The conclusion I reach from reading the FIFA and the SFA Regulations which bear to give effect to them, as a whole, is that representation contracts are registrable by the SFA only if a remuneration clause is included [cl. 8.1(j)]: but if there is no remuneration clause and the contract is not registered the SFA will impose the default provision in the event of a dispute submitted to a determination in accordance with its regulations. My understanding of the SFA Regulations - there was no submission about this and the specific provision is garbled - is that in terms of the regulations, disputes between players' agents and players have to be submitted to the jurisdiction of the SFA unless there is prior approval of the board of the SFA to take disputes to a court of law [cl. 15]. My interpretation may not be correct: but, if it is correct then you are left wondering why the defender has not tried to have these court proceedings sisted pending determination by the SFA board.

[25] The answer may be that although the defender is prepared to say that the SFA Regulations "apply" to his contract with the pursuer, or that the contract is "subject to" the SFA Regulations, all for the purpose of persuading the court that the agency contract is unenforceable, he is not convinced that he can go so far as to say that the contract "incorporates" the regulations. Indeed, senior counsel submitted that the regulations are not incorporated. This would be understandable, certainly in relation to the dispute resolution clauses [cls. 14 and 15]: courts of law are slow to be persuaded that extraneous terms purporting to oust their jurisdiction are incorporated into private bargains [McConnell & Reid v Smith 1911 SC 635]. It may be of course that the second agency contract, which allegedly involved a waiver of legal fees, was not registered or, if registered, ought not to have been registered and that this is another reason why the defender is shy about pleading incorporation and taking the dispute to the SFA.

[26] The debate that I heard assumed, on both sides, that "registration" in terms of the SFA Regulations is necessary to perfect "representation contracts". This is correct in the sense that the regulations authorise agency activities only where there is a "representation contract" in place and where "the Representation Contract is registered in accordance with the terms of this Clause" [cl. 10.1(a) and (b)]. Although the rest of the clause does have references to the registration process, there is actually very little about the mechanics of registration or the nature of the register and access to it. Contracts have to be submitted for registration within 30 days of signing [cl. 10.5(a)]. The FIFA Regulations do not really add anything. They provide [cl. 19.6]: "For registration purposes, the players' agent is advised to send the third and fourth copies [of the representation contract] to his association and the association to which the player or club belongs within 30 days of their having been signed."

[27] There is nothing in the FIFA Regulations or the SFA Regulations about the effect of registration or the status of unregistered contracts. My instinctive understanding is that registration confers the right of representation in the eyes of the SFA, allows the SFA to have oversight and publicises the existence of registered agencies for the purpose of preventing "poaching" by other agents contrary to the SFA Regulations [cl. 9]. Agents who foresee the risk of poaching would be well advised to make registrable agreements and to have their agreements registered.

[28] In this case the defender avers that on or about 5 May 2011 the chief executive to the Scottish Professional Footballers' Association telephoned the SFA to find out "whether a representation contract had been lodged in respect of the defender". The averments continue:

"The SFA correctly confirmed that, as at the date of [the] inquiry, there was no registered Representation Contract in respect of the Defender. Accordingly, so far as the football governing bodies were concerned, the Defender did not have a registered agent and the Defender was entitled to enter an agreement with another professional football agent or Solicitor or member of his own family."

No doubt this is correct "so far as the football governing bodies were concerned": but it does not address the question of private law rights and obligations as between the parties. If the football authorities were intent on putting a stop to agency activity outside the regulations they could easily give the regulations teeth: but they have not done so; and, on the submissions made to me, I do not think that common law principles can be stretched for this purpose.

[29] The pursuer's case might have been better pled: but I do not think that the defender is unfairly disadvantaged by the omission of an averment to the effect that the agreement about third-party remuneration was made immediately before parties put pen to paper in the Burger King fast-food restaurant; or by the omission of the averment that Blackburn Rovers would have paid the pursuer commission in breach of the FA Regulations. I should be surprised if the pursuer were able to adduce acceptable evidence to prove the latter point. That, however, is not the issue at this stage. I cannot say that the claim is bound to fail. The pursuer has in my view averred sufficient on paper to allow him to put such evidence as he can muster before the court in support of his claim for lost commission.

[30] The subsidiary and alternative personal bar case is not well articulated. As I understand it, the case proceeds on the hypothesis that parties achieved consensus and, without having perfected their agreement in binding form by registering it with the SFA, proceeded to act on its terms. The pursuer's averments are potentially adequate, if proved, in my view to support a plea of personal bar by rei interventus or homologation or both. These averments can be allowed to go to proof as well. The submission for the defender that a claim for remuneration quantum meruit is available for the services that were rendered assumes, paradoxically and contrary to the primary submission, that there was a contract, albeit a contract without a remuneration clause.

[31] In general the decisions relied on by senior counsel for the defender, and accepted by counsel for the pursuer as authoritative ― decisions, that is, as to the construction of disputed contractual terms ― point to the desirability of establishing all the background information that was or ought to have been available to the parties. There is also novelty and a public interest in the subject matter of the instant case and its resolution. All these factors additionally and separately persuade me that it would be appropriate to allow a proof before answer.

[32] Accordingly I shall refuse the defender's motion inviting me to sustain the defender's first plea-in-law (irrelevancy and lack of specification) and to dismiss the action without hearing evidence; and I shall accede to the pursuer's motion to allow a proof before answer, reserving all pleas. I shall also reserve meantime all questions of expenses. Senior counsel for the defender suggested that if the action were not dismissed it would be appropriate to remit it to the commercial roll. I leave it to the defender, if so advised, to enrol the appropriate motion.