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Cite as: [2005] ScotSC 75

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Wight Chiropractic Clinic Ltd v. Corries (Scotland) Solicitors [2005] ScotSC 75 (12 October 2005)

Sheriff Scott

A6022/04

Wight Chiropractic Clinic Ltd v Corries (Scotland) Solicitors

GLASGOW, 12 October 2005.

The Sheriff, having resumed consideration of the cause, sustains the defenders' first, and third pleas-in-law but only to the extent of granting leave to the pursuers to amend their pleadings, where appropriate, by deleting reference to Dr Ross M F McDonald qua pursuer; Allows the pursuers a period of 21 days from the date hereof within which to lodge a minute of amendment and period of 14 days thereafter for answers; Assigns 25 November 2005 as a Rule 18(3) hearing; meantime reserves all questions of expenses arising from the diet of debate.

Sheriff

NOTE:-

Introduction

Prior to the arrival of the minute of amendment, No 13 of process, Wight Chiropractic Clinic Ltd (hereinafter referred to as "the clinic") were the singular pursuers in the action. They sought payment from the defenders in respect of loss of earnings and outlays incurred by them as a result of their employee, Dr Ross McDonald, being cited to attend court as a witness, on two separate occasions. Dr McDonald is a Doctor of Chiropractic. Prior to his being cited to attend court, he had examined and reported upon the condition of the defenders' client, Dr J Jones, following injuries sustained by him in a road traffic accident. It is beyond dispute that as things turned out, Dr McDonald did not, in fact, require to attend court on either occasion. However, in terms of the closed record, dated 18 February 2005, his employers, the clinic, nevertheless claimed an entitlement to payment in respect of two fee notes.

In response to the case brought by the clinic, the defenders tabled a general plea to the relevancy of their averments and a plea of no title to sue.

Thereafter, the minute of amendment, No 13 of process, was received and answered. A diet of debate had previously been assigned and the Rule 18(3) hearing following upon the amendment procedure was assigned to call on the same date as the debate.

When the case called before me, initially for the purpose of the Rule 18(3) hearing, the solicitor for the defenders, Mr Stevenson, opposed the motion to have the record amended in terms of the minute and answers. Suffice it to say that, after a short discourse, I decided to allow the amendment albeit that the expenses occasioned thereby were awarded in favour of the defenders.

Notwithstanding the alterations to the pleadings, together with the introduction of a second pursuer, viz. said Dr McDonald, Mr Stevenson insisted upon the defenders' preliminary pleas, now encapsulated in the amended record, No 16 of process, and the matter proceeded to debate.

Defenders' Submissions

In seeking to develop the line of argument set out in the defenders' Further Note of Argument (No 14 of process), Mr Stevenson advanced the following propositions:

(a) On the facts averred by the pursuers, the court could not, as a matter of law, sustain the pursuers' second and third pleas-in-law. The pursuers' averments in Article 3 failed to disclose the existence of any contract which might form the basis for the crave for payment in the present action. It was submitted that the citation of a witness was not in the nature of a bilateral agreement. The citation of witnesses and the corresponding liability for their fees and expenses was governed by Rule 29.7(5) of the Ordinary Cause Rules 1993.

(b) The pursuers' seventh plea-in-law was inept or, at the very least, the basis for any quantum meruit claim was unclear. The principle of quantum meruit, concerned the measurement, often under reference to market value, of services rendered. The principle could never be applied where no relevant, legal foundation for seeking payment existed in the first place.

In any event, for the principle of quantum meruit to apply, there had to have been the provision of services to the defenders under a contract. The citation of the individual witness, Dr McDonald, could not and did not give rise to the provision of services under a contract. In particular, no services were, in fact, provided, or, at worst for the defenders, either the clinic provided the service (by "their provision of the said Dr McDonald to answer said citations on said days") or Dr McDonald did. There could not be a provision of services by both of the pursuers. In any event, in reality, the pursuers' claim was for work not done as opposed to services rendered albeit in the absence of agreement on the amount of remuneration.

(c) Dr McDonald's case was irrelevant as he had failed to aver the circumstances in which he had incurred loss or expense due to his having been cited as a witness.

(d) The action as laid was incompetent in respect that separate pursuers could not conjoin in the same action in respect of separate and independent grounds of debt. Reference was made to the case of Boulting v Elias 1990 SLT 596. The first pursuers' claim for payment was based upon an alleged contract between them and the defenders or some sort of quantum meruit argument. Leaving aside the defenders' attacks on the relevancy of each of these cases quoad the clinic, for present purposes, there appeared to be no ground of debt as far as Dr McDonald was concerned. There was no plea-in-law to that effect and the "esto averment" at the very end of Article 3 simply served to suggest that Dr McDonald had "a duty to account to his employers for the sums recovered in payment" of what was said to be due under the two invoices. That averment did not square with the other averments in Article 3. For instance, there was no suggestion that Dr McDonald had received sums in respect of which he had a duty to account. Even if he had, there would be no relevant basis upon which he could seek further payment from the defenders.

Accordingly, for the foregoing reasons, Mr Stevenson sought dismissal of the action.

Pursuers' Submissions

At the outset, Mr MacNeill, for the pursuers, seemed to accept that they faced a dichotomy. He noted that the defenders maintained that the clinic had interest but no title to sue whereas Dr McDonald had title but no interest. He suggested that this was a somewhat novel situation. Reference was made (without objection) to the pursuers' documentary productions and, in particular, Nos 5/1, 5/2 and 5/3 of process. No 5/1 of process, being a letter dated 9 July 2003 from the defenders, was said by Mr MacNeill to represent the start of "whatever relationship there was between the parties". All that followed thereafter was consequential upon the initial instruction to examine Dr Jones and to prepare a report.

Mr MacNeill stressed that Dr McDonald had been cited in his capacity as a skilled witness. He referred to the citations in question and the two responses from Dr McDonald being Nos 5/3 of process and 5/5 of process. Against that background, Mr MacNeill sought to identify the source of the obligation said to be incumbent upon the defenders to make payment to the pursuers.

It was submitted that the Ordinary Cause Rules dealt with witnesses of fact and also skilled witnesses where the "medium" (ie the witness) is a principal. In the present action, the person cited to attend court was not the principal, and, therefore, different considerations applied. As a matter of fact, the clinic organised their affairs in such a manner as to issue fee notes for services provided by their employees, including Dr McDonald.

The pursuers' case was principally characterised as being based on contract because of the nature and content of the correspondence contained within No 5 of process. It was not suggested on behalf of the pursuers that the citation itself had the effect of creating a contract. There had been a course of conduct as between the defenders and both pursuers whereby the defenders obtained the services of the clinic through the medium of Dr McDonald. The contract terms, submitted Mr MacNeill, provided that the defenders would meet any reasonable fees which ought to be paid to Dr McDonald either as a consequence of his attendance at court to give evidence, in which event he would have been required to clear his diary for the day, or by virtue of his taking steps to clear his diary with the result that he was unable to carry out his usual practice. In both these circumstances, a loss would have arisen.

Mr MacNeill accepted that Dr McDonald sustained no personal loss. He was still entitled to receive and did receive his salary. However, it was, he contended, disingenuous of the defenders to suggest that no liability should fall upon the person or entity who invited this situation to occur in the first place, merely because of the employer/employee relationship which prevailed in the particular circumstances.

The recent amendment heralded a fresh approach which had been adopted in order to meet the lacuna identified by the defenders. It was conceded that there were difficulties in pointing to the precise formulation of the contract founded upon by the pursuers but Mr MacNeill placed store in the demonstrable actings of the parties. Accordingly, the pursuers now offered to prove that there was a professional obligation incumbent upon any solicitor who cited a witness to attend court. That obligation arose from the Ordinary Cause Rules and, indeed, in terms of its origins, it could be traced back over many years. Reference was made to the case of A B v C D 1843 6 D 95. Mr MacNeill argued that the present situation embraced one of the cardinal features of the expenditure involved in conducting a litigation and that should the Ordinary Cause Rules be unable to meet the situation, there was, in any event, an underlying principle to be found in the case of Fraser v Stronach (1885) 23 SLR 76. He referred to the judgment of Lord McLaren in which his Lordship stated that:

"The principle of the common law is clear. Where the public interest is involved, any person cited must give his attendance as matter of imperative public duty. But there is no such public duty to appear as a witness regarding a question of private right at the instance of a private party, and no witness is bound to attend unless he receives payment of his fees or has a reliable guarantee for their payment. In the application of that principle the law holds that the agent's acting in the cause, employing an officer to cite the persons to be called as witnesses, and taking similar steps, are equivalent to a guarantee that the witnesses' expenses will be paid, and therefore the persons cited cannot excuse themselves from attendance on the ground of no prepayment."

In further support of his argument, Mr MacNeill referred to Dobie on Sheriff Court Practice at page 193, paragraph 8; the Stair Encyclopaedia Vol 13, paragraph 1201; Begg on Law Agents at page 289, paragraph 7; Mackay on The Practice of the Court of Session Vol 2, at page 570, paragraph 2; and the case of Stirling Park & Co v Digby Brown & Co 1996 SLT (Sh Ct) 17.

Mr MacNeill advanced the proposition that there was an obligation incumbent upon a firm of solicitors to meet fees and expenses where those were of an established nature and regarded within the profession as being the sort of outlay to which the foregoing authorities applied. In other words, this sort of liability was recognised as being a personal obligation incumbent upon each and every solicitor. Regarding the characteristics of the obligation, Mr MacNeill referred to the sixth finding-in-fact of the sheriff in the Stirling Park case, "There is an implied term of the contract imported by custom and usage in the professions of the parties that defenders pledged their credit to pursuers for payment of their fees and are personally liable for those fees."

In the Stirling Park case, the contract relied upon emanated from a letter requesting the pursuers to carry out a poinding. In Mr MacNeill's submission, the circumstances were very close to those in the present litigation. In other words, there had been invitations to Dr McDonald to attend court on particular days and to take all steps necessary to take those days off work. Mr MacNeill reiterated that the pursuers founded strongly upon the letter of 9 July 2003, viz. No 5/1 of process. However, that letter could not simply be looked at in isolation and the whole "picture" required to be considered.

The "rule" which the pursuers propounded was not draconian in any shape or form. There was a clear procedure available in terms of the recovery of expenses. A solicitor acting for a successful party could seek to have the unsuccessful party found liable for the reasonable expenses incurred by a skilled witness. Ultimately, there would be a right of recourse to the solicitors' own client.

In relation to the new Article 4 of Condescendence, and the pursuers' quantum meruit case, whilst the pursuers founded principally upon contractual writings, the actings of the parties and the existence of an overriding professional duty, were those features not established, it was open to the pursuers to offer to prove an entitlement to payment quantum meruit. That sort of claim, argued Mr MacNeill, was appropriate in circumstances where there was no express contract.

Under reference to the defenders' competency argument, Mr MacNeill invited the court to note the terms of paragraph 4.38 in the second edition of Macphail on Sheriff Court Practice. He referred to the two conditions which the learned authors suggested required to be satisfied to render competent an action involving two or more pursuers. In the present instance, the rights and interests of the two pursuers were "very closely intermingled". The action involved the same set of factual circumstances and it could be said quite categorically that Dr McDonald would not have been involved in the dispute had he not been employed by the clinic. Conversely, the clinic would not have become involved had they not employed Dr McDonald. Their respective interests were entirely joint.

Therefore, on behalf of the pursuers, Mr MacNeill moved the court to repel the defences thereby sustaining the pursuers' first plea-in-law. Alternatively, should that course not find favour with the court, Mr MacNeill submitted that a proof before answer should be allowed.

Decision

(1) I deal firstly with the merits of the defenders' first plea-in-law. In my opinion, it is, in principle at least, well-founded. As the learned authors of Macphail point out, at paragraph 4.38 of the 2^nd edition, an action in which two or more pursuers join is competent provided that two conditions are satisfied, namely, (a) the ground of action by each pursuer must be identical; and (b) there must be no material prejudice to the defender by the pursuers' combining in one action.

(2) In the present instance, there is no suggestion of material prejudice and, for my part, I can find none. However, in my opinion, the present pursuers fall foul of the first condition precedent. Whilst Mr MacNeill submitted that the rights and interests of the two pursuers were "very closely intermingled", that characterisation, to my mind, is somewhat vague and, in any event, is unsound as a matter of law. Whilst the interests of the clinic and Dr McDonald may well be related, their respective rights are not. Any right to payment which may be "vested in" Dr McDonald, qua individual, would flow from the Ordinary Cause Rules, whereas the clinic could have no similar right. This observation coincides with the submissions put forward by Mr Stevenson. The clinic's case is based upon the existence of a contract, failing which, reliance upon a quantum meruit argument. In contrast, there appears to be no relevant basis by which Dr McDonald might claim payment from the defenders, since there is no suggestion whatsoever that he has been left "out of pocket".

(3) Having heard full argument on the amended pleadings, I consider it unfortunate that the clinic deemed it necessary or appropriate to introduce Dr McDonald as a second pursuer in order to meet a perceived lacuna. As it turns out, the inclusion of Dr McDonald was, I consider, ill-advised. However, paragraph 4.39 in Macphail makes it clear that the situation in which these conjoined pursuers find themselves is not necessarily fatal. It is open to the court to allow the instance to be amended by the removal of one or other of the pursuers. That was the approach taken in the case of Paxton v Brown 1908 SC 406. Notwithstanding the very recent inclusion of the second pursuer, Dr McDonald, for the reasons which follow, I take the view that the interests of justice dictate that he should now be excluded from this litigation and that further amendment should be allowed to enable that to be achieved.

(4) For completeness, at this stage, I should also state that the defenders' third plea-in-law is well-founded. For the reasons advanced by Mr Stevenson, no relevant case has been pleaded on behalf of the second pursuer. Accordingly, I have resolved to sustain that plea with the result that Dr McDonald would, in any event, be excised from the action in the absence of the further amendment envisaged.

(5) Aside from the competency point and the narrow attack directed at the pursuers' pleadings in so far as they related to Dr McDonald, Mr Stevenson challenged the existence of a relevant contractual claim against the defenders. For that approach to be sustained it is necessary, in my view, to isolate the initial instruction sent by the defenders requesting that their client be examined etc, from the subsequent witness citations requiring Dr McDonald to attend court as a witness on behalf of the defenders' client. In this regard, it is important to observe that Dr McDonald was cited in his capacity as a professional or skilled witness. His involvement was not, for instance, determined by his chance presence at the scene of an accident thereby rendering him an important eye-witness as far as one or other litigant might be concerned. On the contrary, the citations to attend court flowed directly from the original instruction issued by the defenders, dated 9 July 2003 addressed to Dr McDonald at the Wight Chiropractic Clinic. The pursuers offer to prove that the defenders thereby engaged the services of an employee of the clinic, namely said Dr McDonald.

(6) Mr MacNeill argued, inter alia, that the court should adopt a more comprehensive approach when it came to determining what, in these circumstances, gave rise to an obligation on the part of the defenders to make payment. He rejected the notion that the original instruction could somehow be treated as separate and distinct from the two citations. In my opinion, he was correct to do so, for reasons which are obvious. A solicitor of ordinary competence and, indeed reputation, ought to be aware that professional persons approached to prepare reports for the purposes of litigation, in whatever particular context, agree to do so on the clear understanding that they will be remunerated in respect of their skills. Should they thereafter be called upon to make themselves available to "speak to the report" as a witness, that obligation arises exclusively from their capacity as a skilled professional and is fulfilled by the application of the sort of skills originally patronised by the solicitor in question. Were the sort of approach espoused by the defenders to prevail, it would follow that solicitors might instruct a medical report for which the physician in question would be entitled to proper professional remuneration. However, the same physician's valuable professional time would not be remunerated should he be called upon to make himself available to answer a witness citation. That consequence would, in my opinion, be absurd and unjust.

(7) It seems that the defenders seek to exploit the way in which the clinic chooses to manage its affairs. However, to my mind, the position is relatively straightforward. The clinic offers to prove that Dr McDonald was one of its employees. The clinic, as his employer, is to be paid for his services, whilst Dr McDonald receives a salary. The clinic's averments regarding the existence of a contract with the defenders are, in my opinion, more than sufficient to justify an enquiry into the facts. The first main issue for determination at proof is focused in the pursuers' second plea-in-law and the defenders' fourth plea-in-law. Put shortly, the issue is whether there was a contract between the clinic and the defenders in relation to the supply of professional services in the person of Dr McDonald? The second question which requires to be considered is, if there was such a contract, what was its nature and extent? Did it embrace the professional costs incurred by the clinic as a result of Dr McDonald rendering himself available to give evidence as a skilled witness in furtherance of the report prepared by him?

These two issues are covered by the passage of averment commencing with the words "It is explained and averred that there is a contract...", where they appear in Article 3, some 11 lines from the top of the fourth page in the record. In particular, it is averred that it was an implied term of the contract between the parties, et separatim imported by custom and usage that the defenders would be responsible for payment of the sums associated with the citation of a professional witness. In the particular circumstances of the this case and having regard to what is said in paragraph 6 supra, I consider that the clinic has pleaded a relevant case regarding the existence of a contractual liability on the part of the defenders.

Having determined that the pursuers' averments disclose a relevant case based upon the provision of services to the defenders under a contract, it follows that the pursuers are also entitled to an enquiry in relation to their quantum meruit claim in Article 4 of Condescendence. Contrary to Mr Stevenson's submission, in my view, the pursuers offer to prove that, consequent upon the citations served in respect of Dr McDonald, his services were, in effect, held open for the benefit of the defenders' and their client. The pursuers claim an entitlement to payment in that regard. They seek to quantify the sum to be paid under reference to the lost revenue arising from the fact that Dr McDonald was committed to attending court, should he be called upon to do so. In this context, the overall result must be reasonable and what amounts to the payment due will be a matter for proof.

In substance, therefore, I have allowed a proof before answer, subject to the anticipated amendment procedure. Whilst the above interlocutor makes no specific reference to this, I would expect the Sheriff called upon to deal with the Rule 18(3) hearing to assign such a diet once the amendment procedure has been completed.

With regard to the expenses of the debate, these have been reserved. It is, of course, eminently arguable that the defenders achieved a measure of success. However, I consider that the court must look to the wider picture here. In principle, and having due regard to the administration of justice, there is, to my mind, something otiose about officers of the court declining to meet the fees of a skilled witness duly cited by them. Only when the full facts of the case are known can the court properly determine this and other questions of expenses. Naturally, if it be the case that the defenders, in reality, are merely challenging the amount charged on each occasion, that is something which they ought to have made plain in their pleadings from the outset.