Scottish Sheriff Court Decisions

A442/04

 

SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT CUPAR

JUDGEMENT OF SHERIFF G J EVANS

in causa

BENNETT & ROBERTSON LLP, Solicitors

25 George IV Bridge, Edinburgh, EH1 1EP

PURSUERS

against

PAUL STRACHAN

residing at 34 Reform Street, Tayport, Fife, DD6 9HX

DEFENDER

 

 

CUPAR,       May 2006. The Sheriff, having resumed consideration of the cause, FINDS-IN-FACT:-

 

1. The pursuers are a firm of solicitors in Edinburgh and the defender became a client of theirs during 2004. Both parties are as designed in the instance.
2. On 22 March 2004 the defender contacted the pursuers in connection with his boundary problem at 34 Reform Street, Tayport seeking their assistance with the objectives outlined to them in his "Proposed Terms of Engagement of even date" (vide item 1 of the defender's first inventory of productions). He also provided further information in computer form as detailed in answer 2 of the Record.
3. After further contact and meetings, the pursuers agreed to act on behalf of the defender in this matter and the defender eventually signed the pursuers' terms of business on 20 April 2004 in respect of the work done or to be done in that regard.
4. The work undertaken by the pursuers and the correspondence between the pursuers and the defender and other interested parties is as recorded in the pursuers' client's file lodged in process.
5. The pursuers rendered their first fee note in respect of the work done on 29 April 2004 for £2,645.82, which the defender has paid.
6. The pursuers rendered their second fee note in respect of said work on 27 May 2004 for £2,601.50 which the defender has not paid.
7. The defender took the view that from 29 April 2004 the pursuers failed to act in accordance with his reasonable instructions, acted to the detriment of his interests, failed to give advice on current law, gave unsound and misleading advice and failed to give advice on time limits.
8. The pursuers withdrew from acting for the defender by letter of 26 May 2004 as they considered that the defender had unrealistic expectations of what the pursuers could do for him in the time that he demanded and, as there was no longer a sufficient degree of trust and confidence between them, they decided to terminate their agency.

 

FINDS-IN-FACT-AND-IN-LAW:-

 

1. The amount on the pursuers' second fee note represents fair remuneration for the work done, providing that thereby the pursuers did not deviate from normal professional practice in the handling of the defender's affairs and throughout exhibited no departure from ordinary skill and care.
2. The defender has failed to prove any such deviation or departure.
3. The defender's own behaviour, having led to the irretrievable breakdown of trust and confidence between the parties, justified the pursuers in ending their contract of employment after the period covered by said second fee note.

 

Accordingly Sustains the pursuers' first plea-in-law and Repels the second and third pleas-in-law for the defender; Grants Decree against the defender for payment to the pursuers of the sum of TWO THOUSAND SIX HUNDRED AND ONE POUNDS AND FIFTY PENCE (£2,601.50) with interest thereon at the rate of 3 per centum per annum above the Royal Bank of Scotland base rate from time to time from 26 June 2004 until payment; Finds the defender liable to the pursuers in the expenses of the action; Allows an account thereof to be given in and Remits the same when lodged to the Auditor of Court to tax and to report; and Decerns.

 

 

 

 

Sheriff

 

NOTE:-

 

INTRODUCTION

 

This is an action over an unpaid solicitors' account. The client is dissatisfied with the quality of work done on his behalf and refuses to pay for it. He has settled the first fee note rendered to him on 29 April 2004 for £2,645.82 as he was satisfied with what had been done on his behalf up until then. It is the second fee note for £2,601.50 that he disputes. It became clear during the subsequent proof before me that the amount on this second fee note is not at issue, simply whether or not it should be met in the circumstances of the case. I heard evidence over 2 days, viz 14 and 21 October 2005. The pursuers were represented by Mr Wilson, Solicitor, Edinburgh and the defender appeared throughout on his own behalf. The only evidence led for the pursuers was from a partner of the pursuers, viz Mr Stirling and the only evidence for the defender came from the defender himself.

 

BACKGROUND

 

In order to follow the dispute over the fee note, it is necessary to appreciate the nature of the conveyancing problems that arose once the defender and his wife had gone ahead with their purchase of a plot for a new house at a development site in Tayport. The minutiae of the background to this is as contained in his initial precognition prepared for the pursuers but, briefly put, the problem would appear to stem from the common owner of land having sold on sequential occasions the same portion of part of that land to two different purchasers. Dundee City Council acquired land in Tayport in 1918. Their successors, Dundee District Council, first sold part of that land in two parcels to a local farmer and his wife and the title to that was registered on 15 April 1996. The first parcel is described as a "large area lying on the north east side of the Policies of Scotscraig" and the second parcel as "those three areas of land lying on the north side of the said Newport road between the said road and the railway". Both are shown delineated in red on the plan annexed to the Disposition in favour of the farmer and his wife. Dundee District Council next sold off more of the land to builders and their title to the land was registered on 30 June 1999. The extent of that is described as "that plot or area of ground extending to 6,519 decimal or 10,000^th parts of a hectare or thereby off Reform Street and lying generally to the west of Craig Lane, Tayport ... all as shown as delineated in red on the plan annexed and executed as relative" to the Disposition in favour of the builders. What was not realised was that a small part of what was subsequently sold to the builders had already been sold to the farmer and his wife (although that has yet to be admitted by Dundee District Council).

 

This has had the result that the defender and his wife have no clear title to their particular plot. It took a very long time for that problem to surface. The defender and his wife expected to take entry to their new house on 19 November 1999 but, at a visit to their then solicitors, Miller Hendry, Dundee the day before, they learned via the builders that there was a boundary discrepancy of at that time a mere some 500 metres, near the garage corner at the rear of the house and from the planning department that the builders had not obtained planning permission for the changes in the house style required by the defender and his wife. The defender and his wife were at that point in rented accommodation, which they had to vacate by 24 December 1999. They managed to come to an accommodation with the builders which allowed them entry on 23 December 1999. It was agreed that the purchase price would be reduced by £5,000 to cover the defender and his wife's extra expenses, rent and stress. The sum of £10,000 from the defender was to lie in third party security deposit, £5,000 of it to be released on completion of all boundary works and the resolution of planning permission and the remaining £5,000 to be released on receipt of a land certificate without exclusion of indemnity. Lastly it was agreed that the builders would pay the defender and his wife all their legal fees in resolving their title problems. Thereafter the defender and his wife obtained a disposition in their favour from the builders and granted a standard security to the mortgage company, obtained their mortgage and paid the adjusted purchase price.

 

Some three years later, in January 2003 the defender's solicitors were still looking for the issue of a land certificate from the Keeper but were advised that none could be issued until the ordnance survey produced an updated map of that area. In August 2003 the Keeper had received his updated ordnance survey map but it had highlighted problems in the builders' title. The builders' response to the defender of 22 August 2003 at last provided a plan of the problematic area, which now extended from a line of 8.6 metres on the western most boundary of the defender's plot tapering to a point on the nearby plot at No 32. The defender could now see that the farmer and his wife's land cut straight through his property leaving almost half his plot outwith the land owned by the builder. A number of other proprietors in the development were also affected.

 

The defender was not satisfied with the various responses to the situation from the affected parties and from the Keeper. His then solicitors eventually broke off relations with him on 21 November 2003 and his own attempt to get a solution via Dundee District Council and the builders' successors came to nothing. The defender suspected that the other parties had known of the problems and title before he and his wife took occupation of the house. He first turned to another set of solicitors in Edinburgh, namely Morton Fraser, who eventually gave detailed advice to him as per their letter of 11 March 2004, with a view to the defender not having to leave the house but ending up with a land certificate without exclusion of indemnity and any financial recompense that might be appropriate. They took the view that the defender's best claim would be against the builders for breach of contact in failing to provide a valid marketable title. The obvious solution was some form of corrective conveyancing which, if achieved, would affect and qualify the defender's claim against the builders. The builders should be given a deadline to complete such corrective conveyancing and in default of that advised that an action should be raised against the builders without further warning. There was also a possible claim against the solicitors who had acted for the defender in the conveyancing in respect of what might have been their failure to examine the extent of the title belonging to the farmer and his wife. The time limit for raising such an action would be 5 years from the act of default, so that, to be on the safe side, the defender would have to raise an action against them "in the early autumn" of 2004, and such an action could be sisted pending the resolution of an action against the builders. That would probably mean raising an action against the builders before the end of 2004 at the latest. Their initial view was that it was unlikely that the defender would have a claim against the Keeper. In any event their firm had a potential conflict in acting against the Keeper in any litigation and for that reason advised the defender to seek advice from other solicitors if he wished to pursue that course of action.

 

It was against broadly that background that the defender first got in touch with the pursuers (vide the e-mail to Gordon Innes dated 22 March 2004) setting out what was headed "BOUNDARY PROBLEM - URGENT". (vide No 129 in the correspondence file) The pursuers responded by arranging an initial appointment for Thursday 25 March 2004 at 2.00pm, which then took place. The solicitors for the builders, with whom the defender himself had been in touch meantime, sent him an e-mail dated 31 March 2004 suggesting that the way forward would be to "have a round table meeting with all parties present (ie yourself, my clients, ourselves, the Council and the farmer) to discuss all outstanding issued and the resolution desired." The pursuers' Mr John Stirling had agreed to take the defender's case on and he and the defender corresponded by e-mail and a site visit was arranged and carried out. Mr Stirling wrote to the builders' solicitor by letter of 14 April 2004 confirming the defender's agreement to a meeting of all parties but also pointing out that if no progress was made, he would raise an action against them within the next 28 days (vide No 119). He also wrote to the defender and his wife on the same date stating inter alia:-

 

"Please sign the Mandate and one copy of the Letter of Engagement. Please also revise the precognition and have a valuation of the house. We can then begin to quantify your claim in advance to the planned meeting with all parties. As discussed on Tuesday I would propose to simply let the meeting play out and see what the builders' demands might be. If one or other of you does not attend the meeting there must be a period for instructions from the absent person to be taken. I would anticipate that at least two further meetings would be required before a final deal is reached. If nothing is forthcoming within the next five or six weeks an action should be raised against the builder, Miller Hendry (purely as a precaution) and the Keeper." (vide No 113)

 

After his meeting with the defender on 13 April 2004 Mr Stirling wrote to him at length on 15 April 2004 outlining his overall view of the position. In his view the defender had a good case against the builders for breach of contract and damages. There was also a claim for legal fees and minor works to the house carried out at the defender's own cost and that would be covered by the retention of £10,000 currently sitting on deposit in the names of the two firms of solicitors one acting for the defender and the other for the builder. The builders would also have a claim against Dundee District Council under the warrandice clause in their title deed and that should suffice to prevent any action against the builders leading to liquidation. The defender's claim against his original Dundee solicitors was more doubtful and it might be difficult to attribute fault to them. Any potential claim against the Keeper required further investigation. It was possible that if he was aware of the discrepancy between the farmer's title and the defender's, he may have had a duty to disclose it in the form 10 report. (vide No 96(1)(2))

 

At this point both the builders' solicitors and the Keeper were beginning to move things forward to lay the ground for corrective conveyancing. On 31 March 2004 the builders' solicitors wrote to the Keeper for confirmation that the plan provided by the Keeper with their letter of 23 January 2004 was correct with regard to the extent of the subjects which the defender should have title to in terms of his Feu Disposition and showed the position of the dwellinghouse within his plot as shown in the Feu Disposition plan. This was with a view to obtaining the defender's agreement to use that plan as the basis for the corrective conveyancing (vide No 99). The Keeper's reply of 3 April 2004 (vide No 98(1)) attempted to deal with the concerns raised by the defender in his letter to the builders' solicitors of 23 March 2004 (vide No 101(1)) by highlighting the difference between an ordnance survey map and a plan depicting ownership, with a view to ensuring that the full extent of the defender's land fell within the terms of any corrective conveyancing. Mr Stirling was adding to this collective good will in the matter by suggesting that the corrective disposition from the farmer and his wife would require a detailed description of the farmland boundaries in the land certificate, with the ordnance survey sketch being indicative only (vide No 73(1)). He sought to clear his views with the defender by faxing him a draft of his letter to the builders' solicitors but the defender gave a rather prickly response as he stated he had "no intention of forming a united front with the builder, at least, until they play ball and provide us with the assurances we need. After all, the farmer is not a problem for us at present" (vide No 71(1)). Mr Stirling disagreed with that and replied as follows, in his e-mail of 4 May 2004:-

 

"That leaves the relationship with the farmer. The fact that he is quiescent at present is deceptive. He is the real danger to you. Understanding and controlling his aspirations is the key to achieving a deal quickly. Nothing we can do in suing the builders can control the absolute need for a corrective disposition, if your house is not to be pulled down." (vide No 70)

 

(It was about this time that the defender was invited by the pursuers to settle the pursuers' first fee note for £2,645.82 (vide No 69(1) and 63)). The possibility of the defender being forced to dismantle his house continue to worry away at Mr Stirling and, after some research, he produced his e-mail of 7 May 2004 to the defender (No 59) setting out the view that the farmer and his wife would be entitled to force the defender to dismantle his house unless some unequivocal act in the past amounting to personal bar prevented them from so doing. Such an act would not in any event be binding against a subsequent purchaser of the farmlands.

 

The suggested "round table" meeting was eventually arranged for 2.30pm on 11 May 2004 at the District Council's Office of Economic Development in Dundee. When informed of it, the defender was not happy about what he termed "the vagueness of the meeting's objectives. We had expected that before any meeting takes place the builders would have responded with their position on the measurements we offered on 23 March 2004 and their payment of Miller Hendry's fees etc". He indicated that he had lost trust in the builders long ago. (vide No 64(1)) He was however persuaded to attend that meeting which duly took place and Mr Stirling's note of what took place is recorded at No 46(1) of the file correspondence. The farmer was willing to convey the land in question if he could have a servitude right of access and wayleave to services for further development in his land. Dundee District Council would provide an architect to plot the defender's boundaries and prepare a plan in conjunction with the defender and that would be agreed with the Keeper. The defender would be spared all costs of having the matter put right without prejudice to any claim that he might have against any of the interested parties. (vide No 46(1)).

 

After that meeting, on 13 May 2004 the defender faxed (No 48(1) (and also e-mailed (No 44(1)) the pursuers expressing inter alia concern that, apart from the surveyor's visit in the coming week, there were no commitments made to a timescale in relation to anything else. He wanted the pursuers to contact the Keeper by letter with a view to the Keeper rectifying the title, standing the amount of unchallenged building that had gone on over the disputed area of ground without objection from the farmer and his wife over the past 5 and more years. He also enclosed his own notes of what had transpired at the meeting on 11 May 2004 (vide No 43(1)). On the same day, viz 13 May 2004, the builders' solicitors e-mailed the pursuers with their summary of the decisions and action to be taken following that meeting, raising the question of proceeding by way of contract of excambion as their understanding was that the farmer was to receive other land as his consideration for granting the corrective conveyancing. Meanwhile the defender was less than happy with the fact that no architect or surveyor had been to see him and e-mailed the pursuers on 18 May 2004 to insist upon "a vigorous course of action", inviting Mr Stirling to prepare the letter to the Keeper along the lines set out in his last e-mail and to keep him informed of critical dates for raising any court actions (vide No 41(1)). Mr Stirling replied the same day with a copy of the builders' solicitors' e-mail and their notes of the meeting along with a revised version of the pursuers' own notes. The defender was informed that the pursuers were "chasing the Council on the architect issue" (vide also No 41(1)). The pursuers sent an e-mail the same day to the builders' solicitors asking "nothing from the Council's architect - can you help?" (vide No 40(1)) The following day, 19 May 2004, the Council clarified by e-mail to the builders' solicitors that all that was required was a corrective disposition by the farmer and his wife to the builders. There was no land to be conveyed in exchange and therefore no need for a contract of excambion. They named the person (Alan Tragham) who had been instructed to meet with the defender and to draw up the necessary plan (vide No 37(3)). That same day, however, the defender wrote to the pursuers by fax stating that he preferred that the pursuers no longer chased the matter of an architect/surveyor any further (see fax of 19 May 2004, No 39). The Fax has a marked peremptory tone, especially in relation to action to be taken in relation to the Keeper. The pursuers replied to the defender by e-mail of 22 May 2004, asking him to nonetheless phone Mr Tragham at Dundee Council and to get the plan moving and offering to attend the site meeting if that would be of assistance. Any action against the defender's former solicitors in Dundee should be raised "in the early autumn" but this would require an expert opinion on negligence and the cost of such an action might not be met by the builders. Mr Stirling reiterated to the defender that in his view any action against the Keeper at this stage would be against his interests pending the current negotiations. Matters between the parties deteriorated fairly rapidly after this point. The defender responded by e-mail (No 31) of 24 May 2004 expressing his disappointment with the lack of action against the Keeper and stating that the time for negotiations was passed. Mr Stirling replied by letter of 24 May 2004 (No 29) stating that he felt that the defender's letters were aggressive and their tone dictatorial and unless they could work together it would be impossible to achieve any satisfactory resolution. The defender replied by fax of 25 May 2004 indicating that although he had been concerned by recent advice asked Mr Stirling to note that he had made no complaint of his performance and had in fact praised it. He hoped that they could continue to work together but if not he would consider Mr Stirling's offer to withdraw subject to Mr Stirling relinquishing any outstanding fees. Mr Stirling, however, was not to be placated and by letter of 26 May 2004 expressed the view that he felt that the degree of trust required between solicitor and client was lacking in this case and that he had decided that he could no longer properly continue to act for the defender (vide No 20). The defender was that very same day trying to rescue matters however and faxed Mr Stirling on 26 May 2004 (No 18) asking him to consider his previous response and to confirm his position at the earliest opportunity. He gave him the chance to meet with him the following day in Edinburgh. Mr Stirling's last letter of 27 May 2004 enclosing the second fee note also confirmed that he could not properly continue to act for the defender and accordingly the relationship at that point was brought to an end. (Vide No 17).

 

PARTIES' SUBMISSIONS

 

Mr Wilson invited me to grant decree in favour of the pursuers as craved and to accept that the pursuers' performance had not been in breach of contract. Even if there had been a breach of contract by the pursuers, they would be entitled to payment for those items in their account which did not come into play by that breach and the account would have to be audited in that regard. As to the defender's case, it had been presented in evidence as one of breach of contract by the pursuers but the defender had no plea-in-law to that effect. The defender's first plea-in-law was a general plea to the relevancy and specification of the pursuers' pleadings and his third plea-in-law was that the sum sued for was excessive - something which he had clearly departed from when he gave evidence. That only left his second plea-in-law, viz "the pursuers' averments being unfounded in fact, the defender should be assoilzied." That, however, was not habile to found a case of breach of contract. That technical objection apart, there was in any event no proof of breach of contract. I was referred to the Stair Encyclopedia, Volume 13 at paragraph 1189 and Volume 15 at paragraph 375 for the standard of the contractual duty of care which a solicitor owed to his client, based on Hunter v Hanley 1955 SC200. The defender had failed to lead any expert evidence as to what the standard of care would have been in these circumstances and in what respect, if any, the pursuers fell short of that standard. The defender did express dissatisfaction with Mr Stirling's performance but difficulties only arose later on for a very short period. During that prior period, Mr Stirling thought that significant progress had been made. If Mr Stirling was correct that nothing could be done to resolve the defender's problem without the co-operation of the farmer, then the defender had not shown anything to contradict the advice given by Mr Stirling that while the farmer might be personally barred from forcing the defender to demolish the house, any purchaser from the farmer would not. Mr Stirling at the end of the day felt that he could no longer represent someone with the attitude of the defender and he could not be criticised for that. Indeed the defender himself in his letter of 25 May 2004 expressed the wish that Mr Stirling would continue to act for him in this matter, without any suggestion that the pursuers had been in breach of contract at that point. He merely stated that if Mr Stirling simply wished to be relieved of the task of representing his interests, he would agree to that subject to Mr Stirling's "relinquishing of any outstanding fees". For those various reasons, the defender should fail and, as he was now departing from the position on record that the fees were excessive, there was no requirement for taxation. I should therefore grant decree as craved. There was no substance to any of the criticisms in the pleadings of the work done. The defender had had previous advice on limitation and on prescription from the first set of solicitors he consulted in Edinburgh. That had been reiterated by the pursuers' Mr Innes and confirmed by Mr Stirling in correspondence to some extent. Insufficient information had actually been given to judge the true date for prescription. Arguably it ran from the date of settlement in December 1999. In any event there was no way that the pursuers' handling of this issue amounted to breach of contract.

 

Another possible outcome would be for me to find for the pursuers in principle but still require the accounts to be taxed. I was referred to Section 61A of the Solicitors (Scotland) Act 1980. That provided that, where the solicitor and his client had agreed in writing as to the fees for work done and to be done, it was not competent, in any litigation arising out of any dispute as to the amount due to be paid under such an agreement, for the court to remit the solicitor's account for taxation. Here it had to be conceded that there was no agreement in writing about the fees for the work done and it would be open to the court to insist on taxation of the account.

 

Were I to be against him on the merits of the case and find that there was a breach of contract, then Mr Wilson submitted that in that event only those items in the account charging for the actions that consisted of the breach of contract should be excluded from it. There was no counterclaim for damages for breach of contract and the question was: Could that part of the work making up the breach of contract be identified in any event? If it could, then there should be a direction to the auditor to exclude those parts from the pursuers' account.

 

The defender submitted that on the basis of his evidence the pursuers had failed to act in accordance with his express wishes by seeking advice from the Keeper on technical matters. Their draft letter of 1 May 2004 to the builder failed to show due skill, knowledge and competence and compromised his interests. The pursuers proffered advice on old law rather than current law, ie the possibility of rectification of title under the Law Reform (Scotland) Act 1979. The pursuers failed to fulfill his express wishes to advise him on the critical time period for raising an action and to write as instructed to the Keeper. There had been no "substantial progress" as a result of the round table meeting as both the builders and the Council had failed to act as promised. The pursuers gave incorrect, unsound and misleading advice and failed to show due care, skill and attention, knowledge and competence in those matters of vital concern to the defender. The pursuers had no real foundation for choosing to withdraw from acting for him and failed to take up his offer of a meeting to resolve matters. They failed to take up his opportunity of discussing any mutual concerns and failed to raise or attempt to raise any court actions. Such failures amounted to non-performance or breach of contract and the defender should not have to pay the second fee note. He submitted that the pursuers' averments were irrelevant and the case should be dismissed but, after some guidance on that matter, he moved for me to assoilzie him from the pursuers' crave.

 

Both parties were agreed that expenses should follow success.

 

DECISION

 

The evidence given by Mr Stirling for the pursuers and the defender on his own behalf did not really take matters much beyond what is already contained in the parties' prior correspondence, which is contained in the pursuers' client's file. It is difficult to give an exact legal analysis of how the parties' behaviour towards each other at the material time should be characterised. The law of agency perhaps supplies an answer. A solicitor seeking his fee is bound, like any other agent for his principal, to exercise such skill, care and diligence as is usual or necessary in or for the ordinary or proper conduct of his profession, or is reasonably necessary for the proper performance of the duties undertaken by him (vide article 42, Bowstead & Reynolds on Agency (17^th edition) at page 156). He will not be entitled to his fee if his performance has placed him in breach of such duties, such breach going to the root of the contract or otherwise justifying his client's repudiation of the liability to pay (vide article 62 ibid at page 267). It follows from that that a person in the position of the defender, who is dissatisfied with the quality of performance on his behalf, does not necessarily have to also claim damages at the same time as claiming that the pursuers were in breach of contact, although that would perhaps be the usual outcome (vide Gloag on Contract (2^nd edition) at page 621). It is enough if all he says is: I refuse to pay and I can justify that by your material breach of performance. As the learned authors' point out there are various ways of characterising this situation. It may be appropriate to say that the agent's breach goes to the root of the contract, or that his dereliction of duty is itself a repudiation of his obligations and that may be accepted by the principal. It may be said that the agent has been guilty of gross neglect or misconduct or lack of due diligence, or dishonesty, or again that his acts have, by his own default, been entirely valueless and useless to his principal and do not therefore qualify him for payment (ibid pages 268 and 269). There is no suggestion in these passages that it must be possible for the principal to adopt one or other of these stances only when he is in a position to claim damages.

 

I would not be inclined, therefore, to find against the defender because he had no counterclaim for damages. Nor too would I be inclined to penalise him for his lack of a proper plea-in-law, namely that the pursuers, being in breach of contract due to the degree of deficiency in their performance of their professional services, the defender was entitled to repudiate his obligation to pay for the same and utterly rescind the contract. When a defender is not legally represented, a degree of latitude has to be afforded to him, especially where the pursuers have not taken this point about the lack of a proper plea in law until the conclusion of the proof. This is something that could have been dealt with at debate. At the continued Options Hearing on 23 March 2005, the Court was not asked to assign a debate and merely fixed a proof.

 

The defender has undoubtedly sufficiently averred a case of breach of contract (vide pages 11 and 12 of the amended Closed Record) so there is sufficient notice to the pursuers of the kind of case that he intends to hold against them, viz breach of contract justifying repudiation of his liability to pay.

 

The real difficulty for the defender arises from the fact that he did not lead any evidence to establish what the normal practice of the solicitor of ordinary skill would have been in the same circumstances and in what respect the way it was handled by the pursuers in the person of Mr Stirling deviated from that practice. As is stated in Walker and Walker: The Law of Evidence in Scotland (2^nd edition by Margaret Ross) at para 16.3.2:-

 

"In a case concerning professional negligence evidence will be led from a person knowledgeable and experienced in the relevant profession as to what is usual and normal practice in that profession, since proof of professional negligence requires evidence of departure from normal practice and also that the course adopted by the defender is one which no professional person of ordinary skill would have taken if acting with ordinary care."

 

(The basis for that passage is the case cited by Mr Wilson of Hunter v Hanley supra). It is not enough for the defender to say that, from his perspective and understanding, the quality of service he received over the crucial four weeks in question was so deficient that he no longer has any obligation to pay for it. The pursuers would have to be condemned out of the mouths of their own profession in that regard. The best course for the defender to have taken, should he not have been able to find any such witness from the legal profession or he could not afford to fund the initial expense of acquiring such a witness, would surely have been to have had the instant action sisted at the earliest possible opportunity so that he could make a complaint to the Council of the Law Society under Section 42A of the Solicitors (Scotland) Act 1980, that the professional services provided by the pursuers were inadequate. The Council have considerable powers over the fees sought, including the right to reduce the amount to nil and to waive, whether wholly or to any specific extent, the right to receive their fees and outlays (vide Section 42A(2)(a)(i) and (3)(b)). That determination may be appealed to the Tribunal set up under the Act but it would be a far more appropriate forum to determine the issues raised in the instant action than in an expensive Ordinary proof in the Sheriff Court in which the only evidence led consists of the self-satisfied solicitor and the dissatisfied client. The statutory provisions laid down in the Act is the one designed for a redress of the defender's complaints (cf MacPhail: Sheriff Court Practice (2^nd edition) at para 2.131)) and it would have provided the defender with a kind of remedy that he is seeking, viz a reduction of the pursuers' fee note to nil.

 

Thus for the reason that the defender has failed to prove a lack of the requisite skill care and diligence required on the pursuers' part and has not availed himself of the appropriate statutory remedy, I do not consider that he is entitled to succeed in his defence. That result is reinforced by a consideration (quantum valeat) of the merits of the reasons put forward by him to justify his non-payment. As far as I can make out from the voluminous pleadings and equally voluminous productions in the case, the defender has 7 main criticisms leveled at Mr Stirling's handling of his conveyancing crisis, viz a failure to follow his instructions to avoid seeking the advice of the Keeper on technical matters; a failure to draft a letter to the builders' solicitors which did not compromise his position; a failure to provide advice on current law; a failure to follow instructions to write to the Keeper requesting him to rectify the title; a failure to pass the pursuers' account for payment to the builders; a general failure of the meeting of 11 May 2004 and lastly a failure to give clear advice about critical dates. It does not appear to me that, with one possible exception, there is any real substance to any of these criticisms and certainly not to justify the conclusion that there has been a material breach entitling the defender to claim a diminution of the pursuers' fees. It is important to bear in mind, as stressed by Mr Wilson, that the pursuers were being brought in to a very complex situation at a very late stage. By the time the defender became aware that there was a problem with his title on 7 August 2003 (vide his Index of Events) some 4 years had elapsed since the conclusion of the Missives. He first contacted the pursuers about it on 22 or 23 March 2004, ie over 6 months later. Thus by the time that the pursuers were able to come to grips with this problem it was some 41/2 years after the conclusion of the Missives and at that point they were having to take onboard a highly complex factual and legal situation which needed fairly rapid action. There was almost a danger of "information overload" at the start given the depth of the defender's own presentation and the length letter of advice from the first set of solicitors that he contacted. Right from the start, and I think correctly, the pursuers saw as their priority the obtaining of corrective conveyancing rather than monetary compensation. That was stated at the outset by Mr Gordon Innes in his letter to the defender dated 1 April 2004 (vide No 124 in the correspondence file). As Mr Stirling stated in his evidence: "My job was to find a solution - to obtain a corrective Disposition from the farmer ... I saw my job as finding a global solution to Mr Strachan's problems so that he might continue to live in the house and be recompensed for all his wrongs. ... the one thing that I would not do was fall out with the Keeper until we had exhausted trying to obtain corrective conveyancing from the farmer. Only the farmer could solve the problem in a satisfactory way. He was the cork in the bottle." It appears to me that the defender suffered from certain misapprehensions in that context. These were that the Keeper should not be consulted on the technical side of plan preparation but he should be consulted about he himself rectifying the title. I would have to differ with him on both those matters. The criteria for the preparation of deed plans is very much part of the Keeper's expertise. By virtue of Section 6(1)(a) of the Land Register (Scotland) Act 1979, the ordnance map is the base map for all registered titles. As is stated in Halliday: Conveyancing Law and Practice (Second Edition) at para 33-64:-

 

"While the Keeper will be prepared to work with plans annexed to existing deeds already recorded in the Sasine Register he feels that when new plans are being prepared they should be drawn up in such a way as to facilitate depiction of the subjects on the Ordnance Map. To this end he has in consultation with the Royal Institution of Chartered Surveyors, devised guide lines for the preparation of new deed plans."

 

Those guide lines are then set out in 16 differently numbered points forming paragraph 33-65. I would have thought it advisable for any agent to check with the Keeper as to what his requirements for a plan were going to be (vide the Registration of Title Practice Book mentioned in Halliday at para 33-75). Secondly, although the Keeper has power to rectify any inaccuracies in the register, other persons, like the farmer, whose interests in land are likely to be affected by the rectification, have not only to be informed but to have consented in writing to what is proposed (vide Section 9(1)(3) of the Act). The Keeper cannot therefore act unilaterally in the matter as the defender appears to imagine. The defender would, from the start, have to take the farmer along with him. As far as I can see from such modern text books as Halliday supra, options that could have been used here would have been (1) for the builder to have agreed with the farmer that the boundary be adjusted to conform with the occupational boundary in accordance with Section 19 of the Act or (2) the Keeper to grant a disposition a non domino with exclusion of indemnity and the builder to supply an insurance indemnity against successful challenge over the next 10 years of possession (vide paras 33-79 at page 304, 33-90 at page 310 and 33-94 at page 312). There is nothing to suggest in any of the correspondence that the defender was prepared to take that kind of chance. He was therefore stuck with a deal having to be made with the farmer, either by means of a Section 19 Agreement between the farmer and the builder (in exchange for either some monetary consideration or some grant of servitude rights) or by means of corrective conveyancing by the farmer giving a disposition transferring the land to the builders again no doubt for a consideration, the cost of this being recoverable by the builders from Dundee District Council. Whatever solution was to be adopted, Mr Stirling was quite right to characterise the farmer as "the cork in the bottle". The farmer held the key to the defender's solution and he could not leap frog over him into the arms of the Keeper expecting the Keeper to produce a unilateral solution.

 

While I accept that a solicitor is bound to accept his client's instructions in relation to matters of strategy, the client would be bound to accept the choice of tactics from his solicitor. In my view it was not for the defender to say who should be getting, or not getting, in touch with whom or what should, or should not, be done and when. The accepted strategy was that the defender secure a valid title to his property by some form of corrective conveyancing without him having to lose his house but without compromising his right to bring an action for compensation if need be against the party or parties in default. It was up to Mr Stirling to evaluate and decide the tactics to be employed to achieve those ends, providing that he followed the Code of Conduct for Scottish solicitors 2002 (vide PHB at F 1002ff) and other practice guide lines, such as insuring that "critical dates are verified at the outset and a system of reminders set up." (vide ibid. F1303). As the Code states at paragraph 2:-

 

"Solicitors should not allow themselves to be persuaded by clients to pursue matters or courses of action which the solicitors consider not to be in the clients' interests. It may be appropriate for solicitors to refuse to act where clients are not prepared to follow the advice given."

 

It is an inference from the correspondence that the defender was constantly putting pressure on Mr Stirling to do certain things at certain points, contrary to the independent position of solicitors in these matters. The defender was forever hustling Mr Stirling along in ways that were not always productive. It is against that general background that I deal with the various criticisms listed above.

 

CRITICISMS

 

1. Advice from Keeper

 

As explained on the Record and confirmed in evidence by Mr Stirling, he spoke to Mr Porteous of the Keeper's office twice to find out what form of document would be required before the defender could obtain a fully indemnified title certificate. That appeared to me to be appropriate and necessary information which in no way compromised the defender's overall objectives.

 

2. Draft letter to builders' solicitors (vide No 71(2) and (3) of the pursuers' correspondent file)

 

The purpose of this letter was for the builders' solicitors and Mr Stirling to "form a united front in discussion with Mr and Mrs Finlay" (ie the farmer and his wife), in relation to how the farm boundaries should be described in relation to the description section of the land certificate as a step in the process of obtaining some form of corrective conveyancing. This appears to me to have been a sensible move on Mr Stirling's part. It was quite wrong of the defender to reply "after all, the farmer is not a problem for us at present" (vide No 71(1)). I agree with Mr Stirling's assessment in his reply No 70 that a corrective disposition from the farmer what was required for a quick solution and any action against the builders would not assist with that immediate objective. I agree with the assessment on Record that "said letter did not compromise the defender's interests" and "did not require a without prejudice clause."

 

3. No advice on current law

 

What the defender is getting at here is that he was given no feedback on his suggestion that the Keeper be asked to use his powers to rectify under the Act (vide Fax of 13 May 2004, No 48(1) in the correspondence file). He was also having a dig at that point that at that time the only advice he was getting from Mr Stirling was in Roman law and the case of Wilson v Pottinger 1908SC580 (vide e-mail of 7 May 2004, No 59 in the correspondence file). There is some force to what he says in that regard as it was never fully explained that, as I have already mentioned, the Keeper could not use his powers unilaterally and that the farmer's consent would be required before any conveyancing solution could be achieved. The other matter of advice on Roman law etc is described by the defender in his pleadings as the pursuer setting out "a negative scenario and reference to old law". I cannot agree with that assessment. Mr Stirling had already drawn to the defender's attention the possibility that his house might have to be pulled down unless parties achieved some form of corrective conveyancing (vide e-mail of 4 May 2004, No 70) and it is obvious from the opening section of his later e-mail (No 59) that the defender found it difficult to accept that the farmer would otherwise be entitled to force him to demolish his house. It was highly appropriate for Mr Stirling to set out his view of what he thought was at stake here for the defender. I myself would be more inclined to share the defender's views on the basis of the Court's equitable power to refuse a proprietor, such as the farmer, his right to order restoration of his property to its former condition where such restoration would be attended with unreasonable loss and expense to the defender "quite disproportionate to the advantage which it would gain to the successful party" (ie the farmer - cf Anderson v Brattisanni's 1978 SLT (Notes) 43). It was however a legitimate matter for Mr Stirling to raise. The fact that he could have shed more light on the limits of the Keeper's powers to order rectification, while a legitimate complaint by the defender, is not one that was going to materially affect the overall strategy of obtaining a corrective title through persuading the farmer to grant it.

 

4. Failure to invite Keeper to rectify the title

 

I have already dealt with this matter. This is something that the defender has expected from the start. His precognition states (see page 17):-

 

"We believe that a first option may be to ask the Keeper to rectify the title in our favour. In terms of the Land Registration Act 1979, we are aware of the Keeper's power to rectify errors in title."

 

He mentions that again in his Faxes of 13 May 2004 and 19 May 2004 and in his e-mail of 24 May 2004:-

 

"In the event of failed negotiations then surely that leads on to a path towards the Keeper whom we believe has the power to rectify errors in title. That option is an attractive one, indeed that is what you previously advise. Surely it does no harm to ask!"

 

I cannot find any trace of any such advice being given and for the reasons I have already given, it would not accord with what the Keeper can do under the Act. Again there is no substance to this complaint.

 

5. Failure to pass advance fee note to the builder for payment

 

The suggestion by the defender was (as stated in his Fax of 19 May 2004 - No 39):-

 

"In anticipation of your next fee note I should like to see an advance note of fees prepared and forwarded to MacLays at the earliest opportunity. I would like to test their promise to accept the cost of the meeting."

 

This again is the defender intruding on matters of tactics. The pursuers' response on record is that the builders had already confirmed at the meeting that they would meet any fees incurred by the defender to his legal agents and this is confirmed by No 43(2), a note of the meeting at paragraph 4.1:-

 

"PS (ie the defender) wished to be kept free of expense with regard to the matter and IB(ie the builder) and the Council agreed that this should be the case. This was without prejudice to any rights to damages for breaches of contracts."

 

It is also confirmed by the documents relied on by the pursuers in their pleadings, viz the builder's solicitors' e-mail of 10 May 2004 (No 53). There may be some merit in the defender's suggestion but it does not follow from the fact that the pursuers decided not to follow it up that they were thereby being negligent. The pursuers had to maintain the momentum of good will and the opportunity generated by the meeting and that would require good relations with the builders' solicitors. That well might have been jeopardised by a strident demand of this nature at that juncture.

 

6. Failure of round table meeting of 11 May 2004

 

This is, on the face of it, the most substantial criticism which the defender makes. As he stated in his Fax of 19 May 2004 (No 39) "the fact is we have no binding agreement with the other parties in respect of what was agreed at the meeting and the Council have failed to respond." As he explained in evidence, having been left high and dry by the pursuers he had had to instruct other agents and take the advice of Counsel, which had resulted in an action being raised against the defaulting parties in the Court of Session that was still ongoing. Mr Stirling, in his evidence, took a far more optimistic view. He stated that the round table meeting "had achieved an adequate solution, or what I expected to be an adequate solution ... I thought I had it fixed ... the solution stalled because a plan had not appeared. The farmer could not sign the disposition until such a plan had been prepared. The Council's architect was going to do it free."

 

There was, however, no protocol set for the meeting. No one person was appointed to take minutes of it to be signed subsequently as agreed by or on behalf of all parties present. There is no doubt that in Mr Stirling's note of the meeting, the farmer indicated that in return for the right to tie into the existing services he would convey sufficient ground (vide No 46(1)). The builders' solicitors' draft note of the meeting (No 43(1)) also confirmed "DF (ie the farmer) advised that he would willing to convey the land required to correct the title for unrestricted right to connect into services within the Reform Street Development." That draft note shows that each party was present along with their own solicitors. It may have been intended for the draft to have been approved by each party for later extension and signature but, as I say, nothing was agreed about this beforehand and I would have thought it essential to (a) secure the signature of each party to what was agreed at the meeting and (b) set out some kind of timetable for the overall solution to be effected. The agreements reached at the meeting would be agreements dealing with "the creation, transfer, variation or extinction of an interest in land" and such agreements require to be in writing (vide Section 1(2)(a) of the Requirements of Writing (Scotland) Act 1995). The matter of a timetable had been suggested by the defender's first set of Edinburgh solicitors, ie in their letter of 11 March 2004 where it states:-

 

"Subject to a further discussion between us to clarify your difficulties with the corrective conveyancing, I consider that the builders should now be given a deadline for completing this, failing which they should be advised that court action will be raised without further warning. Please contact me to discuss what time limit would be reasonable. I would suggest a period of 28 days, or (having regard to the intervention of Easter) a deadline of (say) the end of April." (vide page 4 of the letter)

 

What was agreed at the meeting was never reduced to any formally signed agreement by all parties nor was any deadline put to the builders at the meeting as envisaged by Morton Fraser and Milligan. I would have thought - in the light of subsequent events - that that would have been a sound course of action to have adopted and I sympathise entirely with the defender's complaints in that regard. In the absence of evidence, however, I do not know whether such a course of action is one that would have been adopted by a reasonably competent solicitor exercising ordinary care, skill and caution (cf Central Goven Housing Association Limited v R McGuire Cook and Company 1988 SLT386). None of the other solicitors at the meeting thought to formalise the minutes of the meeting nor to set any deadlines, although I would have thought it would have been in the interests of the builders to have wanted to have done that. As is stated in Stewart on Reparation at para A18-022:-

 

"The standard a solicitor must reach under the law of delict will, as in any other case, be a matter of evidence from those who know what this is - presumably experienced solicitors in the appropriate area of activity. This will vary from time to time depending on the ability of the general body of lawyers and the expectations engendered by them."

 

That element is missing in the instant case and, as I remarked at the outset, in the absence of any such evidence, I cannot presume to substitute my own views of what was required. Also, to be fair to the pursuers, the original suggestion for the meeting was expressed by the builders' solicitors in very limited terms, viz only as a forum for discussion of the outstanding issues and a discussion of the resolution desired (vide No 125(2)). It may be then that it was only meant to be an exploratory rather than a decisive meeting and the fact that concrete proposals came out of it was simply a bonus.

 

7. Lack of advice about time limits

 

The defender's complaint about this is averred at various points throughout the pleadings, viz pages 9, 10, 11 and 12. It is also dealt with in the pursuers' pleadings at page 5. As far as it came up in correspondence, the relevant letters appeared to be 119, 118, 113, 109(1), 79, 35(1), and 34(1). From my reading of this, the pursuers were threatening various parties with time limits in what was an artificial way of maintaining momentum and that exercise had no bearing on the only overall important time limit, the quinquennium in relation to any action to be taken against the defender's Dundee solicitors. On the basis of Stewart v G M Hodge and Sons (an unreported case of Lord Coulsfield, dated 17 February 1995), the earliest date for the start of prescription affecting the defender's claim against his then solicitors would be the date on which the disposition was delivered and accepted (cf Johnston: Prescription and Limitation at page 72). I consider that Mr Wilson is right to say that insufficient information was to hand to say when Miller Hendry "accepted" the disposition. On 22 December 1999 the solicitor certainly wrote to the defender's mortgage lenders saying inter alia:-

 

"There has been a dispute between the builders and the owner of the adjoining farmlands about the location of the boundary but he has never made any formal claim and it is clear to us that the builders can prove the extent of their title by reference to the Land Survey."

 

They would appear then to have been satisfied with the builders' right to grant the defender his disposition and have accepted the disposition subject to certain retentions and that by late December 1999. When exactly they accepted the disposition is problematical. So it is perhaps understandable that Morton Fraser's advice was to say:-

 

"The time limit for making a claim against Miller Hendry would be 5 years from their breach of contract or negligence. Accordingly, if you wish to proceed against them, court action would require to be raised in the early autumn of this year to be on the safe side."

 

Mr Stirling adopted that advice and, as is apparent from his e-mail of 22 May 2004 (No 34(1)), he had discussed this as the date with the defender. He stated:-

 

"As previously discussed any action against Miller Hendry should be raised in the early autumn."

 

It must have been clear to the defender both from Morton Fraser and from Mr Stirling that the main critical date was 4 August 1999, that being conclusion of the missives. Again, however, I have some sympathy with his criticisms here. No clear timetable was set out by Mr Stirling in respect of each party in the case. I am thinking in particular of the Keeper and the builder. No attempt was made to clarify what the exact date was in relation to these parties and on what basis the view was taken that that was the relevant date. That, however, is only a matter of good client/solicitor relationships. It was in no way fatal to the defender's case. Mr Stirling set out his views on the appropriateness of the various actions in his e-mail of 22 May 2004 but in no way placed any veto or barrier in the way of the defender should he decide to proceed. For such a demanding and exacting client as the defender, it might have been more advisable for Mr Stirling to have laid all the appropriate information on a plate from the start but as long as he had kept his own critical date timetable and stuck to that, he was not betraying the defender's interests.

 

Whatever my own view is of the various criticisms, I have already found for the pursuers on the basis explained above and, as the defender has made clear that he is not seeking to attack the amount of the fees in any way, I see no reason to send the account for taxation, thereby incurring extra expense. I shall accordingly grant the pursuers decree as craved and award them the expenses as the same shall be taxed on the basis of their success.

 

 

 

George Evans

Sheriff of Tayside, Central and Fife at Cupar