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Cite as: [2004] ScotSC 72

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A228/2002

SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT CUPAR

JUDGEMENT OF SHERIFF G J EVANS

IN CAUSA

Mr Brian Murdock and Dr Nicola Kim Murdock

spouses, residing formerly at

Feddinch House, By St Andrews, Fife and now at

PO Box 213, Yeppoon, Queensland 4703, Australia

PURSUERS

against

Mrs Heather McQueen

residing formerly at

Burness House, 1 Murray Park, St Andrews, Fife

and now presently care of Murray, Donald and Caithness, Solicitors

Kinburn Castle, St Andrews, Fife, KY16 9DR

DEFENDER

CUPAR, 8 November 2004. The Sheriff, having heard parties in debate and having resumed consideration of the cause, of consent, Repels the Defender's sixth plea-in-law for want of insistence; Sustains the Pursuers' third plea-in-law to the extent of excluding from probation the passage in the Defender's pleadings in the Closed Record, No 15 of Process at page 10, line 17 thereof beginning "In relation to the Pursuers' qualification of condition 12 of the said offer ..." down to and including the words "and she was not bound to perform her obligations thereunder." at line 26 thereof; Repels the Defender's second plea-in-law to competency and the Defender's third and fourth pleas-in-law insofar as preliminary, reserving their effect on the merits; quoad ultra Allows parties a Proof Before Answer of their respective averments, the date thereof to be assigned at the Rule 18 Hearing to follow hereon (providing that at said hearing neither party requires or requests further debate on the pleadings as subsequently amended); Allows the Pursuers' Motion to amend by lodging a Minute of Amendment within 21 days hereof and Allows the Defender 21 days thereafter for Answers if so advised and Fixes 12 January 2005 at 10.00am as a Rule 18 Hearing thereon; Reserves meantime the question of expenses occasioned by the debate and Allows a hearing thereon at said Rule 18 Hearing.

Sheriff

NOTE:-

BACKGROUND

This was a debate on both parties' preliminary pleas in the Record No 15 of Process. Mr Stewart, Advocate, appeared for the Pursuers and Mr Blane, Solicitor, for the Defender. The action is brought by a husband and wife as Pursuers against the Defender as an individual in respect of the Defender's failure to implement the Missives of sale relating to the subjects forming Feddinch House, St Andrews. Parties had reached the stage of Missives having been concluded and an engrossed Disposition signed by the Pursuers and ready for delivery on settlement. The Defender was given the keys for certain purposes but before settlement could be effected, however, the Defender's agents sent a formal letter to the Pusuers' agents intimating that the Defender was "rescinding" the contract and returning the keys. The Pursuers now seek damages arising out of their having to put the property back on the market and their ultimate re-sale of it at a lesser price than that contained in the Missives.

SUBMISSIONS FOR DEFENDER

The debate turned principally on a question of whether the Defender had put forward any valid ground for her decision to rescind the contract. Each party, however, sought to attack the state of the other parties' pleadings and the debate was opened by Mr Blane, who sought to have me sustain the Defender's second and third pleas-in-law and Dismiss the action or alternatively, Sustain the Defender's fourth and fifth pleas-in-law and restrict the scope of the proof accordingly. There were six different submissions he made to me:-

The second plea-in-law by the Defender raised the question of the competency of the Pursuers' action. There was a single crave for damages but Answer 3 of the Record, which dealt with the question of damages, related in parts to just one Pursuer, eg at page 12:-

"Said breach resulted in the Pursuer being delayed in Scotland in order to re-sell the property as hereinbefore condescended upon and consequently being separated from his family in Australia for a substantial duration."

The law on the matter was quite clear: each party should have separate craves where the basis of their claims were different. I was referred to the cases Buchan and Others v Thomson 1974 SLT124 at 128 and McGillivray v Davidson 1993 SLT693 at 696. As there was no competent crave, the action should be dismissed.

The Record set out the terms of the Missives. The Defender had stipulated in condition 14.6 that the subjects were not listed as being of special or historic interest etc and it was a matter of admission that they were so listed. Condition 14.6 was unqualified in the Pursuers' acceptance and was a material condition by virtue of condition 29 by which all conditions in the offer were to be deemed material. That on its own would justify the Defender in withdrawing from the bargain. There was in addition a second ground for withdrawal led. Condition 12 of the offer required inter alia the exhibition prior to the date of entry and the delivery and settlement of the appropriate evidence that for any erection, work undertaken or change of use since 1974 all appropriate permissions and consents had been obtained. The Pursuers qualified acceptance of the offer deleted that condition in the following terms:-

"This condition will be deleted, under explanation that all documentation in connection with our clients' alteration of the Subjects to provide en suite bathrooms etc for the property and to obtain a Fire Certificate to include the change of use from private dwelling house to a Guest House is exhibited in full satisfaction of this Clause. Your client will require to satisfy herself as to the position beyond what is contained in the documentation exhibited."

Condition 22 gave the Pursuers a time limit of 14 days to implement their obligation under the Missives, a period which was extended to 21 days under the subsequent qualified acceptance. As it turned out, the Defender was unable to satisfy herself under condition 12 as there was no listed building consent at the material time for the en suite bathrooms installed after 1974. It was an odd response to the ground of rescission for the Pursuers to plead (at page 6 of the Record) that:-

"... the Missives do not provide that if the Defender is not satisfied she has the right to rescind. Her remedy would have been to refuse to conclude the Missives."

First of all the right to rescind did not require to be stated in the Missives - vide McBryde on Contract (Second Edition) at para 20-104 - and secondly it was only once Missives were concluded that the Defender would be in a position to resile from the contract. It was clearly the position that the party in material breach could not bring an action for damages against the innocent party and the action was accordingly fundamentally irrelevant and should be dismissed.

In any event certain aspects of the Pursuers' pleadings were deficient. Dealing first with those on waiver at page 5 of the Record, the requirement for waiver was apparent from the cases of Armia Ltd v Daejan Developments Ltd 1979 SC(HL)56 at 68 and 71 and Lousada and Company Ltd v J E Lesser (Properties) Ltd 1990 SC178 at 189. All that was pled in the instant case was that on the basis of the alleged waiver by the Defender of the condition that the Subjects were not listed the Pursuers "allowed the Defender to take actual occupation on said basis." There was no averment made of prejudice. In any event the averment was lacking in specification since it failed to state how and when such allowance was made. It might well precede the Pursuers' acceptance of the condition. In any event whatever the merits of the Pursuers' case on waiver were it should be borne in mind that it was only pled in relation to the first limb of the Defender's stated justifications for withdrawal, ie under condition 14.6 and not to the Pursuers' restatement of condition 12.

The Pursuers' averments on personal bar were also deficient (vide Getty v Maclaine 1921 SC(HL) 1 at 7). The averments were at pages 5 and 6 of the Record:-

"The Defender did not break off negotiating the Missives once she knew that the Subjects were listed. She continued to negotiate the purchase notwithstanding that she knew that Subjects were listed. She concluded Missives containing clause 14.6 and took actual occupation thereunder notwithstanding that she knew the Subjects were listed. By said conduct the Defender justified the Pursuers in believing that she accepted that the Subjects were listed and she would not seek to resile from the Missives on the ground that the Subjects were listed. The Pursuers acted on said belief by continuing to negotiate with the Defender. The Pursuers acted on said belief by concluding Missives. The Pursuers acted on said belief by allowing the Defender to take actual occupation."

The Defender needed to know what the Pursuers did, why they did it and that they would not have done it but for the conduct of the Defender. This was not clear from the pleadings. For that reason the action should be dismissed. Even if valid, they could not be used to justify the breach in terms of the restatement of condition 12. Nor was there any specific plea-in-law directed to either waiver or personal bar.

If contrary to his submissions the action should not be dismissed, then at least certain passages in the Pursuers' pleadings should not be allowed to go to probation. These included the averments on waiver and personal bar, the averment that the Defender took entry, which did not add anything to the case and lastly the averments about the Defender storing furniture and personal effects on the premises and commencing works on the fabric of the premises (vide page 6 of the Record). There was a lack of specification of what she did and when she did it.

From his pre-debate discussions with Mr Stewart, Mr Blane was aware that the Pursuers might wish an opportunity to amend their pleadings on loss. He nonetheless wished to set out his position on that. The averments were to be found at pages 12 and 13 of the Record. It was averred "a closing date was fixed but there were no offers". When was the closing date fixed? In respect of the smaller costs listed at page 13, the Pursuers could not seek to recover legal fees from both the abortive sale and the actual sale as they would have had to pay a set of legal fees in any event in order to sell the property. So there was an element of double indemnity here. As to (d), the re-decoration costs claimed might well contain an element of betterment. As to (e), the recovery of the surveyors fees, would these not have to have been incurred in any event? As to (h), what had the accommodation costs incurred by the Pursuers got to do with the redecoration and re-wiring of the property? This and the remaining items covered periods up to June or July 2001 and it was difficult to see what relevance that particular period had. Nor was there any effort made to explain why the Defender sought to recover costs incurred prior to her offer being submitted. These listed costs (a) to (l) ought not to be admitted to probation.

SUBMISSIONS FOR PURSUERS

In reply, Mr Stewart for the Pursuers attacked the two grounds for rescission. He first of all directed my attention to certain of the documents incorporated into the pleadings. The starting point was the letter from Fife Council to the Pursuers dated 28 June 2001 which made clear that the issue of lack of listed building consent had nothing to do with a change in use of the premises but related purely to the question of whether listed building consent had been obtained for work previously completed under an existing building warrant. It was clear from the Record and the sales particulars mentioned at page 3 thereof that the sales particulars were issued to persons such as the Defender who showed an interest in purchasing the property and these particulars contained information that the property was Grade C listed (vide paragraph headed "Description" and the paragraph headed "General Remarks" under "Listing"). It was also specifically brought to the Defender's attention by the terms of the letter from the Pursuers' solicitors to the Defender's solicitors dated 19 March 2001 mentioned at page 4 of the Record. Thus it was abundantly clear that from a very early stage of the proceedings both before and after the making of the offer, the Defender had had the true situation about the listed category of the property brought to her attention. Pages 8 and 9 of the Record usefully set out the terms of conditions 14.6, 12, 22 and 29 and the qualification to condition 12 made on behalf of the Pursuers (vide foot of page 9 and top of page 10). Page 10 set out the Defender's position on breach as follows:-

"The Subjects at Feddinch House, St Andrews, were at the time of the said Missives listed as being of special or historic interest. Listing Building Consent was therefore required in respect of the use of the Subjects by the Pursuers as a Guest House. The Pursuers were accordingly in material breach of the Missives under reference to condition 14.6 of the said offer. In terms of condition 29 of the said offer, condition 14.6 was a material condition. In terms of condition 22 of the said offer as qualified on behalf of the Pursuers, the Pursuers were not in a position to implement the Seller's obligations under the Missives within 21 days after the date of entry. The Defender was entitled to rescind the Contract between the parties. In relation to the Pursuers' qualification of condition 12 of the said offer, the Defender was unable to satisfy herself because there was no Listed Building Consent at the material time. The Pursuers had installed en suite bathrooms after 1974. The Pursuers had installed said bathrooms without first obtaining Listed Building Consent. The alterations required Listed Building Consent. The Defender rescinded the Contract with the Pursuers by letter dated 23 May 2001 from her solicitors to the Pursuers' solicitors. In the circumstances, the Defender was entitled to repudiate the bargain and she was not bound to perform her obligations thereunder."

Mr Stewart submitted that the Pursuers were not in material breach in relation to condition 14.6. The question of whether the property was or was not listed was a matter of fact and did not relate to any of the seller's obligations under condition 22. The contractual remedy under condition 22 entitling the Defender to rescind in the event of a failure to obtemper an obligation within a set period did not therefore apply to condition 14.6. The first ground therefore failed. The second ground raised the question of the structure of the Missives and the wording of the Pursuers' deletion of condition 12 was of significance. All it meant was that the Pursuers were providing the Defender with certain information for the Defender to look at and then take a decision whether or not she wished to proceed. Nothing further should be read into it. Its purpose was to provide information and allow the Defender to take a view. That was all. As Mr Stewart was then about to attack the Defender's sixth plea-in-law, Mr Blane intervened to confirm that he was quite content for this plea to be repelled as he was no longer insisting on it. Mr Stewart then reiterated that as both grounds for rescission were irrelevant, I should find in favour of the Pursuers and repel the defences on the merits, restricting any proof to a Proof Before Answer on the matter of quantum.

He then turned to respond to the six matters raised by Mr Blane.

The action was competent as the crave for damages was common to both Pursuers. It was after all an action based on breach of contract in which both Pursuers were the sellers with a common interest in performance of the same contract. The cases relied on by Mr Blane were delictual claims dealing with an event which had affected different persons in different ways. Both Pursuers were suing in their identical capacity as joint sellers and it was difficult to see how separate craves could be framed in those circumstances. It was clear that the last sentence of page 12 was merely a typing error and the words "the Pursuer" should have read "the Pursuers", which he now sought to amend at the Bar and I allowed him to do so without objection. The sentence before that did indicate something personal to one of the Pursuers, stating:-

"Said breach resulted in the Pursuer being delayed in Scotland in order to re-sell the property as herein condescended upon and consequently being separated from his family in Australia for a substantial period."

There was however no claim for any particular loss resulting from that averment. The case was properly pled in having only one crave.

This raised the question again of the grounds for rescission which he had already dealt with. Condition 12 as qualified by the Pursuers did not specify any particular time limit for the Defender to satisfy herself about requisite consents and warrants and the Court, implying a reasonable period, would make that up until 1 May 2001 when she occupied the premises. The Defender had been apprised of all necessary information for a considerable period of time and had plenty of opportunity of breaking off negotiations at an earlier stage. Had the Defender been truly concerned about these matters, she would not have waited until 23 May 2001 before deciding to withdraw. She could have broken off right away.

and (4) Mr Stewart did not take issue with the law on waiver and personal bar outlined by Mr Blane. These were, however, a secondary argument for the Pursuers, the principal argument being that the Defender was not per se entitled to resile. The rest of the case still stood and should proceed. His overall submission was that all these matters should go to a Proof Before Answer as sufficient notice had been given in the pleadings of these matters in combination and the Pursuers' case was relevantly pled. Bot waiver and personal bar were averred at pages 5 and 6 of the Record and should be seen as a single chapter in the pleadings. So the distinction that the Defender was seeking to draw between averments relative to waiver and averments relative to personal bar was an unnatural way of looking at the pleadings. It was clear that the averments on those pages were meant to be both cumulative and in common. It was not appropriate for the Defender to require further information about matters and transactions in which she was personally involved and which were thus well within her knowledge. The Pursuers had pled sufficient to allow these matters to go to a Proof Before Answer.

(d) Should go to proof as the nature of the works carried out by the Defender would be elucidated by the kind of redecoration works required to put them right.

It was accepted that there would have to be amendments made on the matter of quantum. In particular it was accepted that only the second set of costs would be recoverable as the first set would have been payable in any event had the sale gone through. That would be dealt with by way of amendment before proof as was fairly normal in matters of that nature. Enough notice had been given on the cost of remarketing the property and the vouching for the items at page 13 of the Record would provide additional and sufficient details about those costs. It might be that the periods over which such costs were being sought would have to be looked at again but the type of loss being sought was clear enough and any adjustments required would be done before proof.

In conclusion, Mr Stewart drew my attention to paragraph 2 of the Pursuers' Rule 22 Note, No 9 of Process which stated:-

"The Defender does not aver that she was in a position to settle the transaction on the date of entry. In these circumstances, she was herself in breach of contract prior to the purported recision on 23 May 2001."

That point raised the question of the mutuality of obligations in contract. The Defender had to come to Court with clean hands and not be herself in breach of contract. There were no averments in the Defender's case to the effect that she had been in a position to settle. The Pursuers had had from an early stage in the pleadings put in a call on her to aver whether she was in funds to settle the transaction on the date of entry (vide page 6 of the Record).

DECISION

I propose to deal with the issues raised at the debate by reference to the six points raised by Mr Blane as they also encompass the issues raised by Mr Stewart.

I consider that the submissions of Mr Stewart on competency are well founded. The first authority on which Mr Blane relied was overturned on appeal to the Second Division (vide 1976 SLT 42). The necessity for a separate conclusion for each Pursuer was however emphasised but only in the context of each Pursuer having a different sum to claim for in respect of his own individual loss or damage arising out of a single wrong (vide Lord Fraser at page 44). That is to be expected in delictual claims. In the instant case the parties are the joint sellers of the property with identical interests and losses. One crave is all that is required. It was argued in the second case that for two purchasers to seek decree for payment to each of them was incompetent as they were joint owners of the property and joint venturers in business. The conclusion should therefore have been for payment to both Pursuers of one sum or either separate conclusions should have been made for each. The Temporary Judge (Horsburgh QC) stated:-

"Where Pursuers have suffered the same wrong by the Defender's breaches as is averred in the present case, they may sue together in the same action, provided the claims for damages are separately stated. That may be done by a separate conclusion for each Pursuer, but I can see no reason why it cannot also competently be done by one conclusion in which the claim of each Pursuer is separately stated, as has happened here. I can see no problems in extracting a decree in favour of each Pursuer on the basis of that conclusion."

While I respectfully agree with that view, I do not see how any of this assists the Defender in the instant case. The Pursuers in the instant case have no such crave for payment to each of them in any event. The crave says "decree against the Defender for payment to the Pursuers of the sum etc", ie the type of conclusion argued for in the reported case of payment to both Pursuers of one sum. If any loss was found to be personal to any one Pursuer, it would simply be discarded from the amount awarded or not allowed to go to proof. It does not seem to me to raise a matter of competency.

As far as the first ground for recision is concerned, the fact that the Subjects were listed and thus contrary to the express terms of condition 14.6, may not give rise to any express right to rescind under condition 22. That however does not prevent it giving rise to an implied right to rescind. I preferred the submission of Mr Blane on this point to that of Mr Stewart. As is stated in McBryde on Contract (Second Edition) at para 20-10, page 482:-

"Breach of a statement about facts is a breach of contract. Breach of a warranty in a commercial contract can be a breach of contract, even although what has happened is a misrepresentation about the past, and no question of implement arises."

Thus the Pursuers' 'misrepresentation' about the past within the Missives, viz that the property had not been listed, could amount to a breach of contract and the materiality of that breach would of course be guaranteed by virtue of condition 29 in the Missives. It is generally recognised that "A material breach by one party gives to the other party an option to be free from future performance of obligations" (ibid para 20-108). The first ground for rescission is thus a valid one, unless of course it is plain that it has been waived or personal bar has intervened to prevent it being exercised. It is thus essential to the Pursuers to succeed on the first ground that they establish waiver or personal bar and I disagree with Mr Stewart's assessment that these are subsidiary matters.

I do, however, agree with Mr Stewart's submission on the Pursuers' qualified deletion of condition 12. The Defender's averment at page 10 of the Record that she "was unable to satisfy herself because there was no listed building consent at the material time" misinterprets the use of the word "satisfy" in the qualified deletion by giving it too positive a meaning whereas it was, in my view, being used in context in a more neutral way. When the qualified deletion provided that "your client will require to satisfy herself as to the position beyond what is contained in the documentation exhibited", it means no more than that the Defender will have to make her own inquiries - full stop. It does not mean that in addition the result of those inquiries has to be to her positive satisfaction. All that the Pursuers are providing for in the Missives is that the only documentation which the Defender will be entitled to have exhibited to her in respect of the obtaining of all necessary consents and warrants for the property in terms of the deleted condition 12 will be restricted to "all documentation in connection with our clients' alteration of the Subjects to provide en suite bathrooms, etc for the property and to obtain a fire certificate to include the change of use from private dwellinghouse to a guest house". The Pursuers give no guarantee about the position beyond those documents and if the Defender wishes to find out what the position is, she will have to do so for herself. That is how I read the qualified deletion. In that situation, the Defender could have responded by providing that while she accepted the qualified deletion of condition 12, she only did so on the footing that she would require X days to satisfy herself thereon and she reserved the right to resile if at the end of that time, she was satisfied that certain items of such erection, work undertaken or change of use since 1974 as was mentioned in condition 12 were not covered by the documentation so far produced. She did not do so, however. The formal acceptance of 24 April 2001 containing the qualified deletion of condition 12 was accepted without any such qualification by the Defender's solicitors' formal letter of acceptance of 30 April 2001. It is only in that sense that I would accept the Pursuers' averment that the Defender's remedy would have been to refuse to conclude the Missives (vide page 6 of the Record), ie only if she had made specific provision for such a course of action in the Missives. In the absence of such a response, the Pursuers were entitled to assume that she was satisfied with the documentation exhibited to her. I conclude therefore that the second ground of recision is not well founded and that the averments relating to at page 10 of the Record should not be allowed to go to probation.

and (4) I deal with the issues of waiver and personal bar together because I accept that one may elide into the other and that they are closely connected (cf Stair Encyclopedia Volume 16 Personal Bar at paras 1627, 1628 and 1633). I preferred and accepted Mr Stewart's submissions here. In the circumstances averred, it would be a reasonable question for the Pursuers to ask:-

"If it was so important to the purchaser not to buy a listed building, why did she go ahead and complete the Missives when she was made aware at the outset that it was indeed a listed building?"

The only two legally satisfactory responses to such a question are as follows (both of which are in my view contained within the pleadings):-

"She decided it was not that important and waived it as a condition of the Missives, if not expressly, then impliedly from the way she behaved throughout the negotiations and up to the point of settlement such that the purchasers placed reliance on that behaviour". (ie = waiver)

"She did not waive it as a condition of the Missives but nonetheless must accept that from the way she behaved during that period and the way she let the sellers behave, the sellers would have been entitled to conclude that she had waived it as a condition of the Missives, especially as they had acted to their prejudice on the strength of that conclusion and that was known to and permitted by the purchaser." (= personal bar both at common law and (?) under Section 1(6) of the Requirements of Writing (Scotland) Act 1995)

It is evident from this analysis that (one) the same behaviour of the Defender may perform a dual function, laying a basis both for the implication that waiver has taken place and also for the creation of personal bar and (two) prejudice is not required for waiver, only for personal bar. The averments of the Pursuers on both these matters have to be read together, as suggested by Mr Stewart. The behaviour of the Defender is averred to be that she continued with negotiations and concluded Missives having known throughout that the property was listed. She took actual possession of the property on 1 May 2001 without making any objection about the status of the building. The Pursuers relied on the belief that she had waived the condition by allowing her into the property. There are sufficiently relevant averments here to allow the matter to go to a Proof Before Answer, the Defender putting a different gloss on the question of whether or not she took actual occupation (vide pages 10 and 11 of the Record). As Lord Keith of Kinkell stated in Armia Ltd v Daejan Developments Ltd supra at page 72, the question of whether or not there has been waiver of a right is a question of fact "to be determined objectively upon the consideration of all the relevant evidence." The averments on personal bar merely flesh out the averments on waiver. Referring to the same kind of conduct as stated above, they go on "by said conduct the Defender justified the Pursuers in believing that she accepted that the Subjects were listed and that she would not seek to resile from the Missives on the ground that the Subjects were listed. The Pursuers acted on said belief by continuing to negotiate with the Defender. The Pursuers acted on said belief by concluding Missives. The Pursuers acted on said belief by allowing the Defender to take actual occupation. As a result the Pursuers suffered prejudice." (vide top of page 6 of the Record) One has also got to take into account the further averments at the bottom of page 6 "prior to the date of entry the Defender stored furniture and personal effects on the premises and commenced works on the fabric of the premises." In my view all the elements of personal bar outlined above are present in these averments looked at collectively and again this is something that requires to go to a Proof Before Answer.

I have already dealt with the overall specification of both waiver and personal bar. The claimed lack of specification about the date of entry is unfounded as the Pursuers do specify that "the Defender ... took actual occupation of the property on 1 May 2001" (vide page 5 of the Record), which is the same as the date of entry. The circumstances relied on by the Pursuers are all matters that would be within the Defender's knowledge in any event. That applies to the averment that prior to the date of entry she stored furniture and personal effects at the premises and commenced work on the fabric of the premises. The Defender is not being prejudiced by a lack of specification about these matters. The Defender's own averments that:-

"Prior to the date of entry specified in the Missives, the Pursuers permitted tradesmen employed by the Defender to go into the Subjects. The Defender had instructed the tradesmen to commence redecoration. Said tradesmen attended at the property and carried out some minor works. During that period, the Defender did not reside in the Subjects." (vide foot of page 10 and top of page 11 of the Record)

show that she is well aware of this aspect of the Pursuers' case.

As the Pursuers have indicated that they are seeking to amend, and, in particular, to amend the averments of loss, there is little point in commenting much further on that aspect at present. It was recognised by Mr Stewart that the Pursuers could not claim for outlays and expenditure which they would have had to incur had the sale gone through and the present pleadings would have to be amended to take account of that and to restrict the period for which any additional outlays and expenditure was being sought. The only comment I would make at this stage relates to three matters. Firstly the criticism by Mr Blane that at page 12 of the Record, the Pursuers' averment that a closing date for fresh offers was fixed fail to specify exactly when that took place. It is clear from the rest of what is pled that it must have been after the appointment of Pagans as estate agents in place of Savilles, ie after late September 2001 and before the property was remarketed at a fixed price (whenever that was, but at least before 19 December 2001 when an offer for the fixed price was received). Surely all that is of importance here is for the Pursuers to be able to prove that they got no offers at all on remarketing the property until a fixed price had eventually to be attached to the property. The fixing of a closing date is merely incidental narrative to that sequence of events. There is no prejudice to the Defender by the Pursuers' failing to specify when exactly that date was fixed. Secondly, as regards item (d) at page 13 of the Record, it is surely simply a matter for a proof by the Pursuers that such redecoration as they had carried out contained no element of betterment. Thirdly, as regards item (h) at page 13, the accommodation costs of remaining in the UK while the redecoration and renovation of the property was carried out, that is explained by Mr Murdock as "the cost incurred as a result of having to remain in the UK to oversee the repairs and renovation of the house, and to arrange for the resale of the house through Pagan Osborne", in his FAX to his solicitors of 17 February 2004 (vide item 10 of the Pursuers' third inventory of productions). I find it impossible to say without knowing the full circumstances here whether or not this is a proper element in the claim for damages and in my view it all should go to a Proof Before Answer.

On the matter of the call on the Defender at page 6 of the Record to aver whether she was in funds to settle the transaction on the date of entry, I consider that the significance of that is purely evidential if it remains unanswered. If at any subsequent proof the Defender seeks to deny waiver of condition 14.6 in the Missives, the Pursuers will be able to put forward as a reason for that being a false denial the suggestion that when she realised that she had insufficient funds to go through with the transaction, she required a pretext to pull out of the Missives and that pretext was that she had not departed from condition 14.6. To that extent, the call and the fact that it has not been answered may be relevant in such a context and I am not prepared to exclude it from probation.

I have accordingly allowed all matters to go to a Proof Before Answer with the exception of the Defender's averments justifying her second ground for rescission set out at page 10 of the Record. I will also allow the Pursuers an opportunity to amend their pleadings quoad quantum. They will also be allowed the opportunity to add a plea-in-law relating to waiver and personal bar which, as was pointed out by Mr Blane, they have so far omitted to make. To add something along the lines of: "The Defender, having waived, et separatim being personally barred from denying that she has waived, condition 14.6 of said Missives, is not entitled to rescind said Missives on the basis of the Pursuers' alleged failure to obtemper said condition." is only a matter of technical importance and may be made without any real prejudice to the Defender. I have accordingly allowed amendment at large in the context of permitting a Proof Before Answer and have fixed a Rule 18 Hearing to deal with that aspect. Only if the Defender is still not satisfied with the proposed amendments would she seek to discharge the Proof Before Answer and have the Court fix a further debate on the Record as amended. I have also reserved the question of expenses of the debate to the Rule 18 Hearing.