The property was not connected to the mains water system. It was therefore incumbent upon the defender in terms of the said term of the contract to make provision for a good and sufficient supply of water supply for the property. The defender purported to do so by the provision of a well on land owned by the defender adjoining the property, by granting the right to use the well and pipes leading therefrom to the property. This water supply was shared with the property known as ...... The Steading ...... which is a property with a dwellinghouse, which was sold by the defender to third parties in August 1998 ..... Explained and averred that prior to the conclusion of the missives relative to the property the defender made certain representations to the pursuers concerning the quantity of water available from the well serving the property. In or about July 2000 the pursuers met with the defender on the property. The pursuers enquired of the defender about the water supply for the property. The first pursuer told the defender that he had never before inhabited a property served by a private water supply and that both pursuers were concerned whether the well would provide an adequate supply of water for the property. The defender pointed to the well which is shown marked "Well" on "Plan Two" annexed to the disposition delivered to the pursuers by the defender as hereinbefore condescended upon. The defender stated to the pursuers that supply of water was more than adequate for the property and the neighbouring property with which the supply was shared; there was a certificate with Aberdeenshire Council to prove that the flow of water from the well equated to 18,000 gallons per day and that the said Council was satisfied that for its intended purpose, namely the supply of the said two houses, the water supply was adequate. This representation having been made, and the pursuers having satisfied themselves that such a flow rate was more than adequate, their concerns were satisfied ....... But for the said representations made by the defender about the water supply the pursuers would not have concluded the missives. Had the defender told the pursuers that she did not know what quantity of water the well could supply, they would not have concluded the missives .......

......... the water supply provided by the defender was not sufficient namely sufficient in quantity. The well from which the supply came, serving the pursuers' dwellinghouse and that of a neighbouring proprietor was not capable of providing a sufficient supply of water in quantity ....... The supply of water was at all material times variable and liable to failure after three weeks of dry weather. It was inadequate for supplying water to two dwellinghouses, in particular the house owned by the pursuers which is a three bedroomed house and the house known as " The Steading" which is a five bedroomed house. The supply failed on 23 June 2001 for twelve days. It failed again on 9 August 2001 for several weeks. At all material times, during the summer months the well was capable of supplying up to a maximum of 500 litres (109.985 gallons) per day ...... The well ....... should have been capable of supplying at least 600 gallons (2727.654 litres) per day, this being a minimum figure for the two dwellinghouses supplied by the well ....... Separatim, the said loss, injury and damage was caused by the fraudulent misrepresentations made by the defender. The representations made by the defender to the pursuers concerning the quantity of water available from the well serving the property were false and fraudulent. The representation that the well had a flow of 18,000 gallon per day was false. The 18,000 gallon per day statistic applied, as the defender well knew, not to the well serving the property but to (another) well ........ The defender did not know the flow rate of the well serving the property and she had no reason to believe that the 18,000 gallon per day statistic could be applied in good faith to the well serving the property ......

As a result of the .......... fraudulent misrepresentations made by the defender the pursuers have suffered loss and damage. Together with the neighbouring proprietors, Mr and Mrs A.S. Bunkell, who also received water from the same well they engaged through solicitors in abortive negotiations, in an endeavour to mitigate loss and damage, with defender for the provision of' an alternative supply of water from a well or wells on the defender's property. The negotiations failed because of the unreasonableness of the defender who demanded that the pursuers pay for the costs of provision of a new supply. The pursuers and the said neighbouring proprietors therefore developed an alternative supply on the property of Mr and Mrs Bunkell, incurring expense of provision of the well, costs of laying pipes etc, and associated conveyancing costs relative to securing necessary servitude rights for the pursuers and their successors in title. The cost of the services of a hydrological surveyor to find a new and adequate water supply and provide a report thereanent was £782. Excavation of a well, track for pipes, and hole for a catchment tank cost £1,175. The supply and fitting of a borehole pump, potable water tank, pump, pipes and associated equipment cost £4,682.38. The transportation of rig equipment and associated labour cost £4,035.54. Conveyancing costs included: £1,255.75 for investigation of the title of the said Mr and Mrs Bunkell in relation to the grant by them of a servitude right; and preparation of a deed of servitude and registration of the same; and £114.20 for preparation of a plan and copies thereof depicting the servitude right; The new supply became available in or about August 2002. The pursuers suffered vexation and inconvenience because of the lack of an adequate water supply, and the measures necessary to remedy the situation. The pursuers also suffered further vexation and inconvenience. When there was no water available they were compelled to seek help from friends and relatives for washing facilities, and had to reside with relatives in Ireland for a period. In the circumstances the pursuers assess their joint loss and damage suffered at £12,044.87, which is the sum first craved and assess their separate losses for vexation and inconvenience at £5,000 each, and these sums are those second and third craved.

It seems to me that, in identifying the tests which averments of fraudulent misrepresentation must pass, it is worth making the distinction between relevancy and specification. So far as relevancy is concerned, to make a case that a contract was induced by fraudulent misrepresentation, the pursuer must in my opinion set out in averment (i) the representation that was made, (ii) that the representation was false, (iii) that the maker of the representation knew when he made it that it was false (or acted recklessly, in that he did not know and was indifferent to whether it was true or false), (iv) that the maker of the representation, if not the defender, was one for whose actings the defender was in law answerable, and (v) that the pursuer was induced by the representation to enter into the contract in question.

As is made clear by the authorities cited and in particular in Semple Cochrane, the pursuers must aver (a) that a representation was made; (b) that it was false; (c) that the defender knew that it was false or that she acted recklessly in that she did not know, but was indifferent as to the truth or otherwise of the representation; (d) that the maker of the representation, if not the defender, was someone for whose actings she was in law responsible, and (e) that the pursuers were induced to contract by these representations. It is clear from the pursuers' averments that a representation was made by the defender, and that the pursuers were induced by it to enter into the contract. It is said that the representation was false (albeit that it denied by the defender). However, it is not stated that the defender either knew that it was false or ought to have known, or that she did not care one way or the other. It also appears from the pleadings that the defender was giving to the pursuers information which she had from the local authority, but it is not said in the pleadings that she was, in law, answerable for the local authority. That might be a difficult thing to prove in any event. In these respects, the pursuers averments do not meet the standard required, and are irrelevant.

Under reference to the five enumerated matters, the defender's solicitor submitted that the pursuers' averments failed to meet the first requirement because they set out what the pursuers were led to believe as the result of the representation as opposed to setting out the representation itself. He stated in argument that he was not submitting that the pursuers' averments did not meet the second, third, fourth or fifth requirements.

So far as specification is concerned, the authorities in my view justify the conclusion that when fraud is alleged, a high standard of specification is required. It seems to me that it is appropriate to bear in mind that the rule requiring pleadings to be specific is founded in fairness. The party against whom any allegation is made is entitled to have fair notice in the other party's pleadings of the substance of the allegation. Where the allegation is of fraud, the courts have applied that rule of fairness particularly strictly. But, in my view, even in a case of fraud, a defender is not entitled to complain of lack of specification if the pursuer's pleadings give him what in the circumstances amounts to fair notice of the allegation. He cannot, through reliance on the authorities about the high standard of specification required in cases of fraud, demand that the pursuer's averments go into more detail than is necessary to give fair notice of the case. Subject to that point, however, it must in my view be borne in mind that the strict standard of specification will be applied to each of the essential elements of the case identified above."

What was it that he did or said? It is not enough to allege, - you said something which led us to believe so and so. That is not enough. If an action is laid upon misrepresentation, the misrepresentation itself must be set forth; and then, when the misrepresentation is set forth, we will see whether it is such a statement as goes at all to support the conclusions of the action, yea or nay; and the party who is said to have made the misrepresentation will have an opportunity of explaining it. The words may admit of other meanings. They may not be such as ought to have led the parties to draw any such inference; and no person accused of fraudulent misrepresentation can be bound to go to trial, unless he is told what the fraudulent misrepresentation is that he is said to have made. Nothing can be more settled than that.

And in the second of these passages, at page 463, his Lordship stated:

And always, when a case of fraud is alleged, general statements are not enough. It is said that fraud lurks in general statements, and general statements are not enough for the imputation of fraud when a party is called upon to defend himself. We must know precisely what the things are, and what the acts are which are alleged. What was it? Did he nod, or wink, or what was it that led them to believe? I think I have never known a case of fraud attempted to be sent to trial upon such a statement as this.

(e) Losses.

The pleadings present numerous problems. There is little detail about why it was necessary to create a new water supply rather than augment the existing supply. Some of the cost involved in this would not be a cost shared equally with the other proprietor, and so there would need to be a clear statement of the expense incurred by the pursuers, and there is not. Furthermore, one would expect some more detail than there is about the precise times that the supply failed and the alternative measures taken by the pursuers in these circumstances, and why these were necessary. One wonders why, if there is a drought, it is necessary to go to Ireland to live with relatives. That is not said.

The pursuers also sue individually for vexation and inconvenience. On the basis of (Mack v Glasgow City Council, Court of Session, 30 March 2006, unreported), I accept that these heads are not a claim for personal injury and so are not time-barred. Nevertheless, the averments are contained in four lines and while it was submitted by counsel for the pursuers that that it enough, there was more said in the averments in Mack about inconvenience than is stated in the present case. In Mack, the pursuer averred that she had suffered inconvenience and damage. She had had to live in a house which was affected by severe water penetration, dampness and mould growth for a specified period. She had suffered inconvenience by living a house which was damp and smelly. She had been embarrassed by living in such conditions and was inconvenienced by having to complain to the local authority. The pursuers' pleadings here lack even that kind of detail.

I therefore sustain the defender's first and third pleas-in-law and, of consent the pursuers' tenth plea. It follows therefore that the action should be dismissed. In the circumstances, I do not consider it necessary to deal with the individual averments which were the subject of attack on relevancy and/or specification, except to say that, had I found the pursuers' case on fraudulent misrepresentation to be relevant, I would have excluded from probation the following, "The pursuers suffered vexation and inconvenience because of a lack of an adequate water supply, and the measures necessary to remedy the situation. The pursuers also suffered further vexation and inconvenience. When there was no water available, they were compelled to seek help from friends and relatives for washing facilities and had to reside with relatives in Ireland for a period." That would be on the basis that they do not give the defender fair notice of the claim.

The learned sheriff erred in deciding that the pursuers' averments failed to give fair notice of their claim for damages for vexation and inconvenience, and that he had he found that the pursuers had averred a relevant cased based upon fraudulent misrepresentation, he would have excluded from probation certain averments as referred to in his judgment at page 16. The averments concerned make a relatively simple claim for damages based on the obvious inconvenience caused by the lack of a domestic water supply in a dwelling house. The averments give sufficiently fair notice of this simple claim, and it is impossible to envisage how the defender would be taken by surprise at proof.

The learned sheriff erred in commenting that the pursuers' averments failed to give sufficient reasons as to why it was necessary to develop a new supply rather than augment the existing supply. This raises a question of mitigation of loss and damage, an matter upon which the burden of proof lies with the defenders whether the claim be in contract or delict. Reference is made to W. McBryde, The Law of Contract in Scotland 2nd ed 2001, at para 22-39.