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Holden v. Fountain Forestry Ltd [2003] ScotSC 26 (26 March 2003) SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT DINGWALL

A90/01

		JUDGEMENT of SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC
		in the cause
		RAMSAY WILLIAM HOLDEN
		Pursuer and Respondent
		against
		FOUNTAIN FORESTRY LIMITED
		Defenders and Appellants

Act: Mr Kinloch, advocate, instructed by Macleod & MacCallum, Inverness

Alt: Mr Mackenzie, advocate, instructed by James Stewart & Co, Inverness

Dingwall: March 2003

The Sheriff Principal, having resumed consideration of the cause, (1) varies the interlocutor of the sheriff dated 16^th May 2002 by the insertion after the words "Junior Counsel" of the words "at today's diet of debate"; (2) recalls the interlocutor of the sheriff dated 9^th September 2002, repels the fourth plea-in-law for the pursuer, sustains the first and third pleas-in-law for the defenders to the extent of excluding from probation the pursuer's averments in articles 2 and 4 of the condescendence and grants decree of dismissal in respect of the pursuer's first and third craves; (3) quoad ultra before answer allows parties a proof of their respective averments in the principal action and in the counterclaim and appoints the same to proceed on a date to be afterwards fixed; (4) sanctions the employment by both parties of junior counsel for the purposes of the appeal and otherwise reserves meantime all questions of expenses and appoints parties to be heard thereon at

Sheriff Court on 2003 at

Note

In this case the pursuer and respondent sues the defenders and appellants for damages in respect of breaches of three separate contracts, all of which relate broadly to the felling and extraction of timber from two sites known respectively as Braemore Phase II and Braemore Phase III. After a debate on 16^th May 2002 the sheriff by interlocutor dated 9^th September 2002 allowed parties a proof before answer of their respective averments. Against this interlocutor the defenders have appealed, and in short they maintain that the sheriff should have sustained their first plea-in-law (which is a general plea to the relevancy in standard terms) and dismissed the action in its entirety. The pursuer for his part has cross-appealed, claiming that the sheriff should have excluded from probation certain of the defenders' averments in answer to his third head of claim.

For the sake of completeness I should mention that the defenders have lodged a counterclaim against the pursuer in relation to the sum sought by him under his first head of claim. It appears that there is no dispute that there should at least be a proof before answer in respect of this counterclaim.

The pursuer's first crave is for payment of the sum of £3,050. It is supported by the averments in article 2 of the condescendence. The pursuer there avers:

By a written agreement entitled "Specified Work Agreement" dated 14^th October 1998 the parties entered into a contract whereby the pursuer agreed to fell timber at a site called "Braemore Phase II" ..... In terms of said agreement the pursuer was to be paid a fixed price of £10 per tonne of timber felled. After entering into said contract the pursuer commenced the felling work. He has received interim payments from the defenders at the agreed rate for the felling work which he has carried out, but payment in respect of a further 305 tonnes remains outstanding. The sum due at the rate of £10 per tonne is £3,050 ..... The pursuer felled 4,127 tonnes of timber. He has received payment of £38,220 in respect of 3,822 tonnes of timber felled. Accordingly he is due to be paid for a further 305 tonnes.

The Specified Work Agreement dated 14^th October 1998 has been produced, and its terms incorporated into the pleadings. The first page consists of a variety of printed and hand-written details. The words "Approx 4,500 tonnes" appear in isolation in one otherwise blank section of the page. There is nothing to link these words with anything else on the first page, and in particular nothing to suggest that they formed part of any particular provision of the contract. Various additional conditions are incorporated into the contract, and these are to be found printed on the second page. The first of these conditions provides that: "The Hirer (namely, the defenders) shall specify the work to be done and the sequence in which priority work is to be carried out. The method in which work is carried out shall be within the control and discretion of the Contractor (namely, the pursuer)".

Counsel for the defenders submitted that the averments in article 2 were irrelevant and lacking in specification with the result that the pursuer's first head of claim should be dismissed. He drew attention to the fact that the pursuer had not specified upon what basis he maintained that he was entitled to payment in respect of the remaining 305 tonnes under the contract. It would have been a straightforward matter for him to have averred that he had been directed by the defenders under the contract to fell a specified number of tonnes, that he had done so and that he was accordingly entitled to payment. But this he had not done. Under the contract, and in particular the first of the printed conditions, he was entitled to be paid for work which had been specified by the defenders, and no more. But he had not averred what work had been specified by the defenders.

In response, counsel for the pursuer submitted that it did not really matter what had been the total amount of work which had been agreed should be done by the pursuer in terms of the contract. All he was asking for was that he should be paid for the work which he maintained that he had done. On the first page of the contract there were the words "Approx 4,500 tonnes". The contract, said counsel, was thus to fell approximately 4,500 tonnes. The pursuer in point of fact maintained that he had felled less than that amount, namely 4,127 tonnes, and he was entitled to be paid for these.

In my opinion the submissions for the defenders are to be preferred. The pursuer's case here is that he felled 4,127 tonnes but has received payment in respect of 3,822 tonnes only, leaving a balance of 305 tonnes, payment in respect of which remains outstanding. But he does not say upon what basis under the contract he is entitled to be paid for these 305 tonnes. In terms of the printed condition on the second page it was for the defenders to specify the work to be done by the pursuer, and it follows that he was only entitled to be paid for work which was specified by them. He does not aver that the felling of the 305 tonnes was work specified by the defenders, and accordingly he is not in my view entitled to be paid for these. Nor do I think that it helps his case to point to the words "Approx 4,500 tonnes" on the first page. As already indicated, these words appear in isolation and I do not consider that they are apt to support the proposition that the contract was to fell approximately 4,500 tonnes. In short, therefore, I am of the opinion that the averments in support of this first head of claim are irrelevant.

The pursuer's second head of claim is based on averments set out in article 3 of the condescendence. So far as material, these averments read as follows:

In about January 1999 the parties entered into a further contract whereby the pursuer contracted to extract timber from Braemore Phase II. This further contract was entered into verbally between the pursuer and the defenders' agent, a
Mr David Grieve. The defenders had previously engaged another contractor ..... to extract timber from Braemore Phase II. A dispute arose .... resulting in (the contractor) terminating his arrangement with the defenders and leaving the site ..... Following (the contractor's) departure, David Grieve approached the pursuer whilst he was working at (the) site and asked the pursuer to take on the contract to extract the remaining 2,500 tonnes of timber from Braemore Phase II. The pursuer agreed to extract said timber on the basis of payment of a fixed price of £4 per tonne of timber extracted ..... The parties having agreed contractually that the pursuer was to extract the remaining timber in Phase II, the pursuer accordingly had the exclusive right to do so.... In terms of said verbal contract the pursuer was to be paid £4 per tonne of timber extracted. Said prices for ..... extraction were agreed, fixed prices. The pursuer had the exclusive right to extract timber from the site and the pursuer had the right to decide how this was accomplished ..... After the pursuer had extracted around 1,000 tonnes of timber, the defenders informed him that they were reducing the contract price for extraction. The pursuer refused to agree to this, and intimated to the defenders that he was holding them in breach of contract ..... The expectation of the parties at the time the contract was entered into was that the pursuer would extract in the region of 2,500 tonnes of timber .... Had the said contract for extraction of timber been completed then it is accordingly likely that the pursuer would have extracted a further 1,500 tonnes of timber.

The pursuer then goes on to aver that he suffered a loss of profits as a result of not extracting

the 1,500 tonnes and, in short, he states this loss in the sum of £3,000.

Counsel for the defenders submitted that these averments were irrelevant to support the pursuer's second head of claim. It was apparent, said counsel, that this head of claim was based upon the pursuer having had the exclusive right to extract 2,500 tonnes of timber from the site. But it was not averred that it was a term of the contract between the parties that he should have such a right and there was no basis in the pursuer's pleadings to justify the assertion that he had such a right. Moreover, there was an inconsistency in the pursuer's averments in that, on the one hand, he had stated that it had been agreed that he would extract the remaining 2,500 tonnes of timber from the site and yet, on the other hand, he had averred that "the expectation of the parties at the time the contract was entered into" was that he would extract in the region of 2,500 tonnes of timber. These averments were clearly inconsistent, and for this reason too the pursuer's second head of claim should be dismissed.

Counsel for the pursuer submitted that he had relevantly averred how, and between whom, this particular contract had been entered into, its terms, and in particular the condition of a fixed price of £4 per tonne extracted, the breach by the defenders in seeking to reduce the contract price and the loss sustained by the pursuer as a result. In this as in any other case, said counsel, the calculation of the pursuer's loss might not be easy, especially where the parties were vague about how much timber was to be extracted. The fact that it was difficult to assess the pursuer's loss did not mean that he could not seek to recover this. The court would have to do the best it could on the basis of the available evidence. It was enough for the pursuer to say here that the parties had had an expectation as to the amount of timber that would be extracted by him and it was not necessary that the exact amount that could have been extracted should be known. Reference here was made to Victoria Laundry (Windsor) v Newman Industries Limited 1949 2KB 528. As for the point made by counsel for the defenders about the supposed inconsistency in the pursuer's pleadings, these had to be read as a whole and it was clear that his case was that the amount of timber to be extracted was only ever an approximation, and this afforded a sufficient basis for a claim by the pursuer to seek to recover the loss said to have been sustained by him in respect of this particular contract.

It was only at a later stage in his submissions that counsel for the pursuer addressed the argument for the defenders that the pursuer had not averred that there was a term of the contract to the effect that he had an exclusive right to extract the remaining 2,500 tonnes at the Braemore Phase II site. Counsel submitted, correctly in my opinion, that this is implicit in the averment to the effect that the parties agreed that the pursuer should extract "the remaining 2,500 tonnes of timber". If he was to do so, then there was plainly no room for anyone else to do so as well. As for the submission about the supposed inconsistency in the pleadings, I notice that this point is not even foreshadowed in the defenders' grounds of appeal. It is in my opinion perfectly clear on a fair reading as a whole of the averments which I have set out above and some further averments which feature later on in article 3 that the pursuer's case here is that, as a result of the defenders' breach of contract, he lost the opportunity to extract 1,500 tonnes of timber more or less from the site at the agreed price of £4 per tonne, and so sustained a loss of profit of £3,000. It is true that at the outset of article 3 the pursuer speaks of the remaining 2,500 tonnes to be extracted as if this figure was fixed. But one has only to consider the point for a moment to realise that, until the timber was weighed, this figure could never have been more than an estimate - and it will of course be for the pursuer to prove that it was an accurate estimate.

The pursuer's third head of claim is for payment of the sum of £60,483. The averments in support of this are to be found in article 4 of the condescendence and, so far as material, read as follows:

In or around February 1999 the parties entered into a further oral contract whereby the pursuer contracted to fell and extract timber from a site known as Braemore Phase III ..... The defenders' agent Mr David Grieve spoke with the pursuer ..... (and) offered the pursuer the contract of felling and extracting timber at the site known as Braemore Phase III. Mr David Grieve also advised the pursuer that he would have "at least one year's work on Phase III". Mr Grieve further advised the pursuer that the price would remain at £4 per tonne of timber extracted and £10 per tonne of timber felled. The pursuer agreed to these terms. Within one or two days the defenders thereafter issued to the pursuer another "Specified Work Agreement" document dated 10^th February 1999. Said agreement was signed by David Grieve and reflected the verbal agreement reached between the parties during their discussion ..... a few days previously. The defenders issued said document in order to formalise the verbal agreement and to secure the pursuer's services for felling and extraction work at Braemore Phase III. The pursuer had not requested the Specified Work Agreement. The pursuer asked the said David Grieve for a letter of intent confirming that the contract into which the parties had already entered was expected to last for at least five years. The pursuer wished such a letter in order that he could show it to financial institutions in order to obtain finance for the acquisition of the equipment which would be necessary for a long term five or seven year contract. There was no need for such a letter to confirm the fact that the parties had entered into a contract, as the pursuer was already in possession of the Specified Work Agreement for Phase III which confirmed the same. In terms of said further agreement the agreed contract price was £14 per tonne of timber felled and extracted. Said further Specified Work Agreement will be lodged in process and referred to for its full terms which are adopted herein brevitatis causa. The defenders are called upon to specify why they consider that the Agreement was not a legally binding contract. The Specified Work Agreement dated 10^th February 1999 related to the felling and extraction of timber at Braemore Phase III. Shortly after the pursuer received the said Specified Work Agreement the defenders' agent Mr David Grieve approached the pursuer whilst he was working on the Braemore Phase II site and indicated that he wished to outline to the pursuer the extent of the work which would require to be completed at the Braemore Phase III site. Accordingly the pursuer walked the boundary of Braemore Phase III with the said Mr David Grieve. Approximately one week later the pursuer completed the felling work at Braemore Phase II ..... The following day the pursuer commenced felling work at Braemore Phase III. The defenders' agent Mr David Grieve had stated to the pursuer that he would have at least one year's work. The pursuer was aware that the felling and extraction of timber at Braemore Phase III would take between five to seven years and reasonably expected his contract to be continued into further years. When the parties entered into the said Agreement the defenders' agent Mr David Grieve advised the pursuer that he had reached agreement with the Forest Enterprise in respect of Braemore Phase III ...... The defenders were keen to secure the services of the pursuer and provided him with the Specified Work Agreement dated 10^th February 1999. Said Agreement was unconditional in its terms. The pursuer had placed no pressure upon the defenders to provide him with the said Specified Work Agreement and believed when he received it that the defenders had secured the contract from Forest Enterprise. It was anticipated by the parties that the amount of timber that was to be felled and extracted by the pursuer from Braemore Phase III would amount to 10,730 tonnes. Reference is made to a document entitled "Period Contract Offer" in which the said figure is recorded. Said Period Contract Offer will be lodged in process and referred to for its terms which are adopted herein brevitatis causa. The pursuer commenced felling and extracting work at Braemore Phase III at about 20^th March 1999. On or about 22^nd March 1999 the defenders, through their agent Mr David Grieve, asked the pursuer to stop work at Braemore Phase III. The defenders thereafter sent the pursuer a letter dated 31^st May 1999 in which they sought to reduce the agreed contract price from £14 per tonne to £12 per tonne. The pursuer refused to agree to this, and intimated to the defenders that he was holding them in breach of contract ..... and would require to pursue his losses...... Had the said contract for felling and extraction of timber been completed then it is likely that the pursuer would have felled and extracted about 10,730 tonnes of timber at £14 per tonne. He would have received £150,220 for this work and estimates that he would have incurred expenses of £89,737 in doing so ..... The sum of £150,220 less £89,737 represents the loss of profit which the pursuer has sustained on the contract for felling and extraction of timber from Braemore Phase III.

For present purposes it is unnecessary to set out the defenders' response to this particular head of claim which is set out in their averments in answer 4. But it is important to notice the terms of the pursuer's fourth plea-in-law which reads:

The defenders'averments in answer 4 to the effect that the Specified Work

Agreement dated 10^th February 1999 was not a legally binding contract being

irrelevant et separatim lacking in specification should not be admitted to probation.

Counsel for the defenders submitted that the sheriff had erred in affording the pursuer a proof before answer of his averments in article 4. He submitted that as a matter of fair notice the defenders were entitled in advance of a proof to be told whether the pursuer was relying in this context upon an oral contract or a written one, namely the Specified Work Agreement. In any event, it was not permissible that a party should go to proof on the strength of alternative, and inconsistent, averments without at the same time stating explicitly that they were alternatives (in which event their relevance would be tested by reference to the weaker alternative). Reference was made here to Macphail on Sheriff Court Practice (2^nd Edn) at paras 9.35 to 9.37 and McSourley v Magistrates of Paisley 1902 10 SLT 86. In this last case Lord Kincairney observed at page 87: "It appears to me that two entirely inconsistent grounds of action are stated side by side, so that I find it impossible to say on which statement the action is rested. In these circumstances, I have come to the conclusion, I admit with hesitation, that the case is badly pleaded, and that I cannot send the case to a jury on the record as it stands. The defects of the record were fully brought out in argument, but the pursuer made no proposal to amend, and in the circumstances I think the proper course is to dismiss the action as irrelevant, leaving to the pursuer to raise a new action on a distinct and intelligible ground". In the present case too, said counsel, the pursuer appeared to be basing his third head of claim on two alternative, and inconsistent, grounds namely, on the one hand, an oral contract and, on the other hand, the Specified Work Agreement.

Counsel for the defenders proceeded to examine the averments in article 4 in some detail and, in short, he pointed out that, notwithstanding the opening averment to the effect that the parties had entered into a further oral contract, there were thereafter repeated references to the Specified Work Agreement which suggested that the pursuer was in fact relying on this rather than an oral agreement. Since this contradiction had not been resolved by the pursuer, his third head of claim should be dismissed.

Counsel for the defenders drew attention here to the defenders' third plea-in-law which he submitted should in any event be sustained. This plea reads:

The pursuer's averments in article 4 of condescendence anent his alleged losses being wholly irrelevant and lacking in specification should be excluded from probation.

Counsel advanced two particular criticisms of the pursuer's averments in regard to the losses said to have been sustained by him as a result of the defenders' breach of the third contract for the felling and extraction of timber at Braemore Phase III. For present purposes I need refer only to the first of these criticisms which was to the effect that the pursuer's averments did not sufficiently specify whether the contract was to subsist for one, five or seven years and what had been agreed between the parties as to the quantity of timber to be felled and extracted by the pursuer. At best he had averred that it had been anticipated by the parties that the amount of timber which was to be felled and extracted would amount to 10,730 tonnes. But there was no averment to the effect that it had been agreed that this amount should be extracted. Under reference to Hadley v Baxendale 1854 9 Exch 341 it was submitted that the pursuer was entitled to recover only such loss as flowed naturally from the breach of contract by the defenders or as might reasonably have been anticipated by the parties at the time they made the contract as the probable result of the breach of it. In the present case, in the absence of an averment as to the quantity of timber which it had been agreed should be felled and extracted by the pursuer, it would not be possible to establish what loss he had sustained as a result of any breach of contract on the part of the defenders.

Counsel for the pursuer accepted that, if his averments were clearly inconsistent, then the result might be that his case was meaningless and should be seen as irrelevant. But the pursuer here had given clear notice of how the oral contract between the parties had been constituted and what its terms were. There was, so it was said, no lack of clarity on the question whether the pursuer was founding on an oral contract on the one hand or a written agreement on the other. The Specified Work Agreement simply reflected the oral agreement which had already been reached, and it was to be observed that it was the defenders who had issued this document. It might well prove to be an important one in the context of the action, but only as proof of the existence of the oral contract and its terms. It was itself no more than an adminicle of evidence. It had not been signed by both parties and so the pursuer's averments could not be read as if there had been a written agreement between them or an oral contract which had subsequently been reduced to writing. The reference to the Period Contract Offer explained why, according to the pursuer, it had been anticipated by the parties that the amount of timber which was to be felled and extracted by the pursuer from Braemore Phase III would amount to 10,730 tonnes. It was to be assumed that the defenders would know what this document was. This expectation was a perfectly reasonable and proper basis upon which the pursuer might seek damages from the defenders following their breach of contract in seeking to reduce the agreed contract price of £14 per tonne to £12 per tonne of timber felled and extracted.

Counsel drew attention to the procedural history of the case and pointed out that, until the first diet of debate, the pursuer's position in relation to his third head of claim had been that there had been a written agreement between the parties. It must have been clear to the defenders from the amendment then made by the pursuer that he was departing from his original case that there had been a written contract. It was accepted that there were a number of fossils from this case still present in the pursuer's pleadings. In particular there was the call upon the defenders to specify why they considered that the Specified Work Agreement was not a legally binding contract and also the pursuer's fourth plea-in-law which was directed to the relevancy to the defenders' averments in answer 4 in regard to the Specified Work Agreement dated 10^th February 1999. It was accepted that this plea should be repelled and the averment incorporating the call could be excluded from probation. It would be difficult then to see how the defenders could be under any confusion as to the basis of the pursuer's third head of claim. Reference was made to the decision of Lord McCluskey in Fryers v Joseph Simmers & Sons (Court of Session, 9^th December 1986 - unreported) and it was submitted that, however inelegant or lengthy the pursuer's averments might be, they had set out a clear case which was relevant for inquiry. As for the submission which had been made by counsel for the defenders about the averments in regard to the pursuer's loss of profits, it was clear that his claim was based only on the loss of profit which he had sustained over the period of one year, and not five or seven years.

In my opinion the submissions for the defenders on this branch of the case are to be preferred. It seems to me that, even if the averment incorporating the offending call were to be excluded from probation and the pursuer's fourth plea-in-law repelled, it would still not be clear from his pleadings whether he was now relying on an oral agreement on the one hand or the Specified Work Agreement on the other. It is true that the opening averments in article 4 indicate clearly enough that the pursuer is relying on an oral agreement. But it is not long before the waters are muddied by repeated, and confusing, references to the Specified Work Agreement. Thus, having averred that he agreed to the terms proposed in his conversation with Mr David Grieve, the pursuer goes on to aver that within one or two days the defenders thereafter issued to him another Specified Work Agreement dated 10^th February 1999. It is said that this agreement was signed by Mr Grieve and reflected the verbal agreement reached between the parties during their discussion a few days previously. Then it is said that the defenders issued the document in order to formalise the verbal agreement and to secure the pursuer's services for felling and extraction work at Braemore Phase III. It may be asked here what is meant by saying that the Specified Work Agreement reflected the verbal agreement reached between the parties, and further what is meant by saying that the defenders issued the document in order to formalise the verbal agreement. It is then said that the pursuer had not requested the Specified Work Agreement, and this might be taken to suggest that he is not founding upon it. But this seems to be contradicted by his averment a few lines further on to the effect that the pursuer had no need of a letter of intent from the defenders to confirm the fact that the parties had entered into a contract, as the pursuer was already in possession of the Specified Work Agreement for Phase III which confirmed the same. Then it is said that in terms of said further agreement the agreed contract price was £14 per tonne of timber felled and extracted. It is not clear here whether the pursuer is referring to the oral agreement or the Specified Work Agreement, but the following averment tends to suggest that the latter interpretation is the correct one. This averment states that: "Said further Specified Work Agreement will be lodged in process and referred to for its full terms which are adopted herein brevitatis causa". At the very least, this suggests that in the mind of the pursuer the document (containing as it does a large selection of terms which did not apparently feature in the oral agreement) has a significance which goes beyond merely serving as an adminicle of evidence to vouch the existence of the oral agreement. The pursuer then avers that the Specified Work Agreement dated 10^th February 1999 related to the felling and extraction of timber at Braemore Phase III, and it is difficult to see how this particular averment could be read otherwise than as an assertion that the pursuer was founding on this particular document. Further on the pursuer avers that the defenders were keen to secure his services and provided him with the Specified Work Agreement dated 10^th February 1999. Then it is said, significantly: "Said Agreement was unconditional in its terms. The pursuer had placed no pressure upon the defenders to provide him with the said Specified Work Agreement and believed when he received it that the defenders had secured the contact from Forest Enterprise". In my view these averments, and especially the reference to the agreement being unconditional in its terms, point clearly to the conclusion that the pursuer is founding here upon the Specified Work Agreement. In summary, therefore, I consider that the pursuer's averments upon this vital question of whether he is relying on an oral or a written agreement are so confused, confusing and self-contradictory that they cannot be admitted to probation in their present form. The defenders are entitled to fair notice of the essential basis of the pursuer's case, and this they have clearly not been given by his averments.

Even if I am wrong in this conclusion, I agree with counsel for the defenders that they have not been given fair notice of the basis upon which the pursuer maintains that it was anticipated by the parties that the amount of timber which was to be felled and extracted by the pursuer from Braemore Phase III would amount to 10,730 tonnes and that, had the contract been completed, it is likely that he would have felled and extracted about 10,730 tonnes of timber at £14 per tonne. It is true that the Period Contract Offer to which the pursuer refers tends to suggest that in year 1 the total tonnage would be 10,730 tonnes, and further that this would all come from Braemore. But neither the year referred to here, nor the phase at Braemore, are specified, and it will be observed that note 1 on the document reads: "1. Period for five years with an option to extend for a further two years based on review of progress". This is perhaps a mirror of the pursuer's averments to the effect that he had asked the defenders' representative Mr Grieve for a letter of intent confirming that the contract into which the parties had already entered was expected to last for at least five years, that he wished such a letter in order to obtain finance for the acquisition of equipment which would be necessary for a long term five or seven year contract and that he was aware that the felling and extraction of timber at Braemore Phase III would take between five to seven years and reasonably expected his contract to be continued into further years. These averments are to be contrasted with the earlier averment to the effect that the pursuer was advised by Mr Grieve that he would have "at least one year's work on Phase III". It seems to me that the pursuer ought here to be able to aver that it was agreed either (a) that he would fell and extract 10,730 tonnes of timber, or (b) that he would fell and extract the timber from a given area and that the estimated amount of timber in that area was 10,730 tonnes, or (c) that he would fell and extract timber from Braemore Phase III for at least one year and that in that time he would have been able to fell and extract 10,730 tonnes. But there are no such averments so that, once again, the defenders are in my view not given fair notice of the basis of the pursuer's quantification of his alleged loss in this context. (In passing, it is interesting to notice here that the first ground of the pursuer's cross-appeal includes the statement that he avers that the work to be carried out under the contract would have lasted for up to five years had the contract proceeded).

Counsel for the pursuer indicated that, if I were with him so far, he would want me to fix a further hearing to consider the pursuer's cross-appeal based, as it appears to be, on his third plea-in-law which reads: "3. The defenders' averments anent the pursuer's losses being irrelevant et separatim lacking in specification, they should not be admitted to probation". Although this plea refers to the defenders' averments anent the pursuer's losses generally, it appears from the cross-appeal that the pursuer's arguments would have been confined to the defenders' averments in response to the pursuer's third head of claim. Since I have rejected this, I think that the proper course would be to repel the pursuer's third plea-in-law. But I shall hold off doing so until the hearing on expenses in case there is some point that I have overlooked. It will also be necessary to consider what, if anything, should be done about superseding extract of the the sheriff's interlocutor dated 20^th June 2002 - see the penultimate section of the interlocutor dated 9^th September 2002.

It was agreed that the sheriff's interlocutor dated 16^th May 2002 should be varied to the effect that the sanction for the employment of junior counsel should be for the conduct of the debate before the sheriff only. It was also agreed that I should sanction the employment of junior counsel for the appeal, and I am content to do this.