Scottish Sheriff Court Decisions

HOMECARE CONTRACTS (SCOTLAND) LTD v. SCOTTISH MIDLAND CO-OPERATIVE SOCIETY LTD [1999] ScotSC 14 (5th May, 1999)

The Sheriff Principal, having resumed consideration of the cause, allows the appeal and recalls the interlocutor of 18 December 1998 complained of; allows to parties a proof before answer of all of their respective averments, and appoints said proof to proceed on a date to be fixed; reserves meantime all questions of expenses relative to the appeal.

On 6 January 1995 the pursuers, through their solicitors, submitted an offer to the defenders to purchase a ground floor property at 38-40 Lawrie Terrace, Loanhead, Midlothian. On 15 February 1995 the missives between the parties were concluded, and on 24 March 1995 the pursuers took entry to the subjects. The defenders retained ownership of the first floor of the subjects.

On the date of entry the pursuers discovered that there had been damage to the subjects caused by water entering the property from the flat roof of a single storey extension at the front of the property. As a result of that the ceiling had collapsed and roof timbers were saturated. Notification of this damage was given to the defenders four days later. It is also averred that on an unspecified date, but possibly in April 1995, the pursuers discovered that the harling on the outer walls of the building was defective. The pursuers aver that they instructed repair of the damage caused by the ingress of water, and that they also instructed repair of the defective harling. So far as the water damage is concerned they claim that the defenders are bound to pay the full cost of that; and, so far as the harling is concerned, they claim that the defenders, as co-proprietors, are bound to pay one half of the cost involved.

Before turning to the legal bases on which the foregoing claims are advanced I think it right to observe that the pursuers' pleadings are in a far from satisfactory state. There are two craves for payment, relating respectively, one assumes, to the claim in respect of the water damage and the claim in respect of the harling (each of which claims is in any event founded on a different legal obligation). The total of these two craves is £13,333.88. However, when one comes to the pursuers' averments as to quantum one finds that no clear distinction is made between the two separate heads of claim. There is a passing reference to a sum of £3,170 as being the cost of the water damage repairs, but that, for no reason that is explained, is a larger sum than the one which in fact is sought under crave 2; and the pursuers' averments then go on to state that the total cost of the works in question was £14,144, which again is greater than the total of the sums sued for in craves 1 and 2. In fact the averments at the end of condescendence 2 are difficult to follow, particularly when read along with the sums sued for in the craves; and I have to say that in this regard the pursuers' averments seem to me to be an example of sloppy and imprecise pleading of a kind which sadly appears to be all too common to-day. Counsel for the pursuers sought to suggest that all of this would become clear when evidence is led, but in my opinion that is far from being an acceptable justification for pleading which is defective. In the event, however, the solicitor for the defenders did not seek to make anything of this either before the sheriff or before myself, and accordingly I say no more about it, save to observe that it may have contributed to an error in the sheriff's interlocutor which I shall mention shortly.

The pursuers' claim in relation to the water damage is founded primarily on clause 4 of a letter of 6 January 1995 written to the defenders by the pursuers' solicitors. That letter was the opening offer to purchase the property in question, and it forms part of the concluded missives. Clause 4 is in the following terms:

The foregoing provision, of course, inverts the normal common law rule that risk passes to a purchaser on the conclusion of missives.

On the face of it the foregoing provision in the missives would appear to give the pursuers an unanswerable claim for payment by the defenders of the cost of water damage repair. However, the defenders rely on the fact that clause 4 in the letter on behalf of the pursuers was met by clause 6 in a subsequent letter sent by their solicitors to the solicitors acting for the pursuers. That letter is dated 27 January 1995, and clause 6 provides:

After debate the sheriff upheld the defenders' contention that the foregoing provision was effective to exclude any claim by the pursuers in respect of the cost of repairing the water damage to the property, and she accordingly bore to exclude that part of the pursuers' claim from probation. Unfortunately, the interlocutor which she signed did not have that effect. What the interlocutor says is: "The Sheriff, having resumed consideration of the cause, upholds the defenders' plea-in-law and [sic] relevancy in so far as it relates to the pursuers' first crave". In fact it was common ground at the appeal hearing that the crave which turns on the construction of the missives is crave 2, and that it was that crave which the sheriff intended to exclude from probation. Both counsel for the pursuers and the solicitor for the defenders were content for the appeal to proceed on the true basis; and the first matter dealt with at the appeal hearing, accordingly, was whether or not the sheriff had been correct in her interpretation of the relevant part of the missives.

In that connection counsel for the pursuers submitted that clause 6 in the letter of 27 January 1995 is so vague and indeterminate as to be unenforceable. He noted that the first sentence appears to accept the inversion of the normal common law rule as provided for in clause 4 of the letter on behalf of the pursuers. However, he submitted that the remainder of the clause proceeds to depart from that position in a manner which is incapable of being given any rational meaning. In particular, counsel noted that the provision about resiling is stated as applying at the time when entry is taken to the subjects; but, it was submitted, resiling is in terms related to resiling "from the Missives" notwithstanding that, by the date of entry, that will be impossible since by then the purchase price will have been paid, and a disposition will have been delivered. Counsel noted that the missives make no provision for any inspection of the subjects just before the date of entry, and that, he submitted, reinforced his criticism of the clause. Counsel went on to comment on the part of clause 6 which deals with insurance. That part, he submitted, gave with one hand and took away with the other since it appeared to make reasonable provision in favour of the purchasers while at the same time appearing to make clear that the sellers were to be under no obligation to insure the subjects at all. Finally, it was submitted, the grammar of the very last part of the clause, and in particular the fact that it is separated from what goes before solely by a comma, must mean that the reference to deletion can only refer to that part of clause 4 in the pursuers' offer which refers to insurance and not to the earlier part of the clause which provides that risk is to remain with the defenders until the date of entry.

Counsel for the pursuers submitted, consistently with the grounds of appeal lodged on behalf of the pursuers, that the sheriff had failed to give any explanation for holding that liability for the water damage was to be governed by clause 6 of the letter of 27 January 1995; and, on the basis of the various submissions which I have outlined above, he submitted that clause 6 should be regarded as being of no effect with the consequence that the matter of liability for the water damage should be determined solely by reference to clause 4 in the pursuers' offer. In support of the proposition that a provision in a contract relating to heritage can be disregarded without damaging the fundamental effectiveness of the contract counsel referred to Freeman v. Maxwell 1928 SC 682 and Hunter v. Fox 1964 SC (HL) 95. In the whole circumstances counsel submitted that the defences in relation to crave 2 should be excluded from probation, and that I should now grant decree for the sum sued for in that crave.

In response to the foregoing submissions the solicitor for the defenders submitted that the provisions in clause 6 of the letter of 27 January are entirely clear, and could be given effect without difficulty. He submitted that it is well established that a party to a contract relating to heritage can resile from the missives notwithstanding that the price has been paid and that a disposition has been delivered. When I asked him for authority to support that proposition he was unable to provide any. He went on, however, to submit that any difficulty occasioned by the provisions of clause 6 could have been avoided either by the purchasers seeking a modification before the completion of missives, or at least by them seeking an opportunity to inspect the premises just before the date of entry. In the foregoing circumstances, the solicitor for the defenders submitted that the pursuers had failed to comply with the opportunity provided by clause 6 (since they had not brought the damage to the defenders' attention until some four days after the date of entry), and accordingly the sheriff had been correct to sustain the defenders' plea to relevancy in respect of that part of the pursuers' claim.

For my part I am bound to say that I agree up to a point with counsel for the pursuers in his criticism of clause 6. There is undoubtedly a marked inconsistency between the first sentence of that clause and what follows thereafter. The first sentence appears effectively to accept what is said in clause 4 of the letter on behalf of the pursuers, but what follows then appears to take all, or at least most, of that away. Moreover, I am disposed to agree with counsel for the pursuers that the reference to resiling from the missives can only be relevant when such a course is still legally possible; and I also agree, in the absence of any authority to the contrary, that when missives have been superseded by a formal disposition it will no longer be possible to resile from the missives. On that basis, and on the assumption that a party will not take entry until the price has been paid and a disposition delivered, the provision in clause 6 is of doubtful practical efficacy. I also agree with counsel for the pursuers that the provisions in clause 6 are obscure since they do not clarify in any way whatsoever the defenders' position, or obligations, in relation to insurance. Finally, I also agree that the use of a comma at the very end of the clause must have the result that the reference to deletion can at best only refer to the part of clause 4 in the pursuers' offer which relates to insurance.

Having said all of that, however, I am not persuaded that the confused state of clause 6 in the letter of 27 January 1995 provides a basis, not merely for recalling the sheriff's interlocutor in this regard, but for going further, as was suggested by counsel for the pursuers, and granting decree at this stage for the sum second craved. It is true, as was observed by counsel for the pursuers, that the quantum of this claim is not expressly challenged by the defenders, but the defenders do have a plea-in-law to the effect that the sum sued for is excessive; and that, it seems to me, would at least require proof as to quantum. However, before even restricting proof to that extent, I would have to be satisfied that counsel's submissions in respect of clause 6 are to be accepted in full, and that the clause is incapable of affording any kind of defence to the claim. As presently advised I am not so satisfied.

In my opinion there are a number of matters which will require to be determined by evidence before any final conclusion regarding the effect, if any, of clause 6 can be reached. In the first place, I have already noted that the first sentence of that clause appears to accept in clear terms the provisions of clause 4 in the pursuers' offer. However, the sentences which follow appear to relate only to "material" damage. That appears to suggest that, notwithstanding the anomaly created by the word "destruction" in the first sentence, the drafters of clause 6 did not seek to remove liability from the defenders in respect of damage which is not "material". In the present case there are no averments on either side as to whether the water damage was or was not material, and of course what amounts to materiality will always be a question of fact depending on the circumstances of a particular case. In the present case it seems to me that it might be open to a court, having heard evidence, to conclude that the damage here was not material. In that event the pursuers' claim would succeed on the basis of the first sentence in clause 6. On the other hand, if the court were to conclude that the damage properly required the adjective "material", then one would require to look at the remainder of the clause.

Notwithstanding its many defects, I am not persuaded that it is so defective in meaning as to require to be in effect deleted, as was suggested by counsel for the pursuers; nor, I have to say, am I persuaded that the cases which were referred to provide authority for simply ignoring a contractual provision which may be defective in some way. In my opinion the cases in question do no more than vouch the proposition that a defective clause may not necessarily render the whole contract void or unenforceable. But that does not mean that the clause in question is to be ignored when a matter arises to which that clause expressly relates. While I agree with counsel for the pursuers that the delivery of a disposition will remove the possibility of resiling from missives, it seems to me that the alleged ineffectiveness of the clause in that regard is wholly dependent on the fact that in the present case entry took place after the price had been paid and the disposition had been delivered. If that did not happen, the terms of clause 6 (which, incidentally the pursuers did not seek to alter at the stage when the missives were still being adjusted) would, in my opinion, be capable of having some effective meaning since the pursuers would still have it within their power to resile prior to the delivery of a disposition. The question then is very much one of fact.

In that regard counsel for the pursuers accepted that it is nowhere stated in terms in the pleadings that payment was made, and a disposition delivered, prior to entry, but he submitted that that state of affairs is implicit in the pleadings. However, I note that in Condescendence 2 of the pursuers' own pleadings reference is made to the terms of "the Disposition by the Defenders to the Pursuers of the said property dated 7 May and recorded in the Registers of Sasines for the County of Midlothian on 2 September both months in the year 1995". If correct, that averment suggests that a disposition was not delivered until more than a month after the pursuers had taken entry to the subjects, and on that basis it may well be arguable that they had ample opportunity to invoke clause 6, and to resile from the missives.

In all of the foregoing circumstances I have come to the conclusion that the sheriff was wrong to sustain the defenders' plea to relevancy in relation to the pursuers' claim for water damage (and I agree with counsel for the pursuers that the sheriff does not give any reason for taking that course). However, I am not prepared to agree that the consequence of that is that decree must now be granted in terms of the second crave advanced by the pursuers. In my view there are as yet undetermined questions of fact which must be explored before any final decision can be reached. I have accordingly allowed the appeal on this point, but I have directed that this matter should now go to a proof before answer.

I turn now to the pursuers' first crave which is said to involve a claim for a one-half share of the cost of repairs to harling on the common walls of the property in question. Before the sheriff the defenders argued that the walls concerned were not common property with the consequence that they should not be liable for a share of the cost of the repairs. They also submitted that certain averments by the pursuers to the effect that there had been an agreement that the repairs should proceed were so lacking in specification that they should not be remitted to probation.

The sheriff rejected the foregoing submissions and allowed a proof before answer in relation to the pursuer's first crave. In their grounds of appeal the pursuers challenged that decision and suggested that the sheriff ought simply to have allowed a proof on quantum. However, at the actual appeal hearing counsel for the pursuers departed from that position. He accepted the need for a proof before answer on the whole matter, and limited himself largely to seeking the deletion of certain averments made on behalf of the defenders. The solicitor for the defenders, for his part, indicated that he was content to accept the sheriff's decision on the matters which I have mentioned above, but he argued against the deletions proposed by counsel for the pursuers on the basis that, at least in part, they deal with what must remain a central issue on this part of the case, namely whether the pursuers were as a matter of law entitled to carry out the harling work without the agreement of the defenders, and then to seek a contribution towards the cost of the work.

So far as crave 1 is concerned the pursuers' primary case, at least as stated in their pleas-in-law, is that there was an agreement to have the works carried out, and that the defenders are liable to pay one half of the cost in terms of that agreement. That case is clear, and simply raises issues of fact which will be determined by the leading of evidence. However, the pursuers also advance an alternative case, and it was the one which was the main focus of attention at the appeal hearing. That alternative case is that, even in the absence of agreement, the pursuers are entitled to claim a share of the cost since, as a matter of law, a co-proprietor is entitled, by himself, to have necessary work done on common property. The solicitor for the defenders sought to argue that the word "necessary" means no more than work which is of an emergency kind, such as the repair of a burst water pipe, while counsel for the pursuers sought to argue that the word has a wider meaning.

The starting point for the foregoing dispute is a passage in Bell's Principles (Chap. 15, para. 1075) where the learned author considers the maxim in re communi melior est conditio prohibentis. That passage concludes with the words: "The exception to this rule is, that necessary operations in rebuilding, repairing, etc., are not to be stopped by the opposition of any of the joint owners". Counsel for the pursuers founded on that passage as supporting his submission that the entitlement of a co-proprietor to instruct repair work, and to receive a share of the cost from another co-proprietor, is not restricted to work of an emergency nature but may include work which is nonetheless necessary. In support of that proposition reference was made to Miller v. Crichton (1893) 1 SLT 262; Deans v. Woolfson 1922 SLT 165; Gloag on Contract, 2^nd ed., 323; and the Stair Memorial Encyclopaedia, Vol 18, para. 246.

In response the solicitor for the defenders, while accepting the authorities founded on by counsel for the pursuers, submitted that the word "necessary" must mean in effect "of an emergency nature". In support of that proposition he founded on a decision by my predecessor, Sheriff Principal Sir Frederick O'Brien, in the unreported case of Liverpool Victoria Friendly Society v. Edinburgh Society of Organists, 30 October 1985, where, at page 4 of the typescript, the Sheriff Principal says:

On the basis of the foregoing passage the solicitor for the defenders indicated that he of course conceded that a co-proprietor could proceed on his own initiative alone in cases of emergency. He also accepted that, where one co-proprietor expressly refused to be involved in repair work, another co-proprietor could have the works done, and look for a contribution to the cost, if the repair work was of a kind which a reasonably prudent owner would regard as necessary for the maintenance of the property. But, he submitted, a co-proprietor is not entitled to look for a contribution to the cost of repairs where, without even consulting other co-proprietors, he has gone ahead, in circumstances falling short of an emergency, to instruct the work.

The meaning to be given to the word "necessary" is not made clear in any of the authorities to which I have made reference. Of course much will depend on the exact facts and circumstances in a particular case, and that is no doubt why no definition has been ventured either by the courts or by academic writers. However, what is also not made clear by the authorities is whether the entitlement to look to a co-proprietor for a share of the cost of repairs, even when those were necessary, will arise in all circumstances or only where the co-proprietor concerned has been approached, and has declined to be a party to the repair works.

Given that the rule about "necessary" repairs is expressed by the authorities as an exception to the general rule melior est conditio prohibentis, there would seem at first sight to be some force in the contention advanced by the solicitor for the defenders that the exception will arise only where there is an express prohibition by the other co-proprietor, and not in circumstances where the co-proprietor is not approached at all. On the other hand, if a co-proprietor is to found liable for a share of the cost of necessary works to which he has expressly objected, it is somewhat difficult, as a matter of logic, to see why he should not equally be liable in respect of works that he was unaware of, provided of course that the works were necessary. I recognise that that is not a view which found favour with Sheriff Principal O'Brien, but I am disposed to think that in the case in question his views were largely influenced by the fact that the co-proprietor in question had actually agreed to pay a share of the cost of certain works on the basis of an estimate which he had seen, but was thereafter faced, some two years later, with an increased demand for payment based on a higher estimate regarding which he had not been consulted. That, in my view, was a highly special case, and I consider that it can be distinguished from the more general issue which may arise in the present case.

At the end of the day, however, I have come to the conclusion that it would not be appropriate for a firm and concluded view to be expressed on this matter until all of the relevant facts have been determined by evidence. Those facts might well be sufficient to enable this case to be decided without the necessity of any firm conclusion having to be reached regarding the matters which I have just been describing; and, even if that were not the case, determination of the actual facts of this case might make a conclusion on those matters somewhat easier. Since it is a matter of agreement on both sides that this part of the case should in any event proceed to a proof before answer, there is, in my view, all the more reason why particular points of law should not be finally determined before the facts are known.

In relation to counsel's submission that certain parts of the defences should be deleted, I have come to the conclusion that that is neither necessary nor desirable. I accept that some parts of the defenders' averments relate to their earlier contention that the walls are not common property (a contention from which they have now departed following on the sheriff's decision on that matter). However, those same averments also contain statements to the effect that the harling work was not of an emergency nature; and, at least to the extent that that bears on a question of fact, I consider that such averments should remain. It would not be easy, without disrupting grammar, to remove some of the relevant averments and to leave others in place. I consider in any event that the proof in this case can quite reasonably proceed on the basis that evidence will not be led in support of the now departed-from averments about common property without the necessity of actually striking them from the record.

On the whole matter, therefore, I have allowed this appeal; I have recalled the sheriff's interlocutor; and I have allowed to parties a proof before answer in relation to both of the pursuers' craves. So far as expenses are concerned, it was a matter of agreement that they should be reserved meantime.