SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY

 

A2739/05

	JUDGMENT OF SHERIFF PRINCIPAL B A LOCKHART
	in the cause
	DTA CHARTERED ARCHITECTS
	Pursuers and Appellants
	against
	CLYDEVIEW DEVELOPMENT LIMITED
	Defenders and Respondents

 

Act: R Barrie, of MacRoberts

Alt: G Craik, of McClure Naismith

 

HAMILTON: 3 May 2007

 

The Sheriff Principal, having resumed consideration of the cause sustains the appeal and recalls the Sheriff's interlocutor of 21 December 2006 complained of; allows parties, before answer, a proof of their respective averments and remits the cause to the Sheriff to fix a date for said proof before answer; finds the respondents liable to the appellants in the expenses of the debate which took place on 7 August 2006 and in respect of the appeal procedure; allows an account thereof to be given in and remits same when lodged to the Auditor of Court to tax and to report.

 

NOTE:

 

Background to the appeal

 

1.             In this case the appellants are architects. The respondents are a company responsible for the construction of a residential development known as Earls Gate in Bothwell. The appellants were involved in the planning stages of the development and have raised this action against the respondents in respect of unpaid fees for professional services rendered in connection with the Earls Gate project. The appellants rendered two invoices to the respondents, which they do not deny receiving, both dated 23 September 2004. These invoices were in the following terms:

(i) "Earls Gate Phase I - Professional services - on site revisions and changes relative to title plans, importation of material, liaison with planning authority, SEPA, enforcement officer etc 177.5 hours at £39.50 per hour - £7,011.25 + VAT £1,226.97 = £8,238.22".

This is the sum sued for in crave 1.

(ii) "Earls Gate Phase 2 - Professional services - total fee to detailed planning approval £25,000 less payment to account £7,500, balance now due £17,500 + VAT £3,062.50 = £20,562.50."

This is the sum sued for in respect of crave 2.

 

2.             The appellants aver in condescendence 4:

"The pursuers are Chartered Architects. On the instructions of the defender company the pursuers have provided professional services to the defender company in respect of Phases I and 2 of the development known as Earls Gate, Bothwell. The pursuers have rendered two invoices to the defender company both dated 23 September 2004. The first invoice is in the sum of £8,238.22 which represents the pursuers' professional fees in respect of services rendered relative to Phase I of the Earls Gate proposed development. The said sum represents the sum first craved herein. The second invoice is in the sum of £23,562.50 and represents the sum due by the defenders to the pursuers insofar as Phase II of the proposed development at Earls Gate is concerned. Said sum represents the sum second craved herein.

The pursuers provided professional services in respect of Phase II of the defenders' development. On the instructions of the defenders the pursuers prepared and lodged a planning application with South Lanarkshire Council. In support of this planning application the pursuers lodged a number of drawing on behalf of the defenders. Copy drawing are produced and referred to. These drawings were received by South Lanarkshire Council and a planning application number was assigned. Copies of the drawings stamped by South Lanarkshire Council are produced.

The planning application was not formally registered and further information was requested by South Lanarkshire Council by letter to the pursuers dated 24 February 2004, a copy of this letter is produced and referred to.

The pursuers provided further information to South Lanarkshire Council as requested.

During the planning process the pursuers advised the defenders that they required to instruct other consultants in order to progress the planning application. A quotation was provided by T Lawrie & Partners but was never accepted by the defenders. A copy of the pursuers' letter to the defenders requesting acceptance of the quotation by T Lawrie & Partners dated 18 October 2004 is produced and referred to.

Other consultants were required but never instructed by the defenders. Accordingly on the instruction of the defenders the pursuers formally withdrew the planning application for Phase II. The planning application could have been resubmitted to South Lanarkshire Council with no further fee being incurred within a period of twelve months. In the event that the planning application had not been withdrawn there was a risk that the planning authority would refuse the application due to lack of information. In pursuance of the planning application for Phase II of the proposed development the pursuers sought and received quotations for landscape layout and design of the proposed development. Reference is made to the pursuers' letter to Joanne Brindley dated 2 March 2004 and Joanne Brindley's letter to the pursuers dated 4 March 2004 copies of which are produced and referred to. The pursuers also required to liaise with South Lanarkshire Council, Historic Scotland, Scottish Water and SEPA. Copy correspondence in this regard is produced and referred to. The outstanding fees were prepared on the same basis which fee was paid in full by the defenders as the initial fee rendered to the defenders in relation to Phase I. The fee issued is comparative with the former RIBA scale and is in all of the circumstances a fair and reasonable fee for the work carried out.

The pursuers provided professional services in respect of Phase I of the defenders' development. On instruction of the defenders the pursuers prepared and submitted an Application for Planning Approval. Planning approval was obtained and a fee note rendered by the pursuers to the defenders. This fee note was paid in full. Following start on site by the defenders further services were provided by the pursuers. In particular, the defenders deviated from the planning approval granted and accordingly the pursuers required to liaise with the planning department and SEPA. ... the RIBA issue a scale of fees which identifies a reasonable fee having regard to the nature, extent and value of the project in question. The pursuers would intend using the said RIBA scale as a further tool in arriving at a fair and reasonable fee. The pursuers are entitled to be paid for the professional services rendered by them to the defenders. In the circumstances where no agreement was reached between the pursuers and the defenders in respect of fees for those professional services, and where the pursuers did not perform the said services gratuitously, the pursuers are entitled to be paid a fair and reasonable fee on the principle of quantum meruit. There is no customary rate for the said services. A reasonable rate therefore falls to be applied. A reasonable rate for the said services is, in the circumstances, the sum of £8,238.22 as first craved and £20,562.50 which is the sum second craved herein."

 

3.             The respondents' answers to these averments are set out in answer 4 as follows:

"Admitted that the pursuers are Chartered Architects. Admitted that on the instructions of the defender company the pursuers have provided professional services to the defender company in respect of Phases I and II of a development known as Earls Gate, Bothwell. Quoad ultra denied. Explained and averred that the pursuers were instructed to produce a development plan for the housing developments known as Phases I and II Earls Gate, Bothwell. Explained that the pursuers were instructed to apply for planning permission for the development which they had planned. Explained and averred that in producing the development plan for Phase I they failed to take account for the need for access to Phase II over the area of ground which formed Phase I. Explained and averred that as a result of the pursuers' said failure it has not been possible to develop Phase II of Earls Gate.

Explained and averred that it was an implied term of the contract between the pursuers and the defenders that the pursuers would act with the skill and care which is ordinarily to be expected of a firm of chartered architects. Explained and averred that a firm of chartered architects exercising their aforementioned skill and care would not fail to take account of the need for access to a joining plots. "

 

4.             At debate the Sheriff heard parties on the respondents' plea of lack of specification of the appellants' case. The Sheriff in his note stated inter alia:

"It is not disputed by the defenders that the pursuers carried out work for them in relation to this development. The issue between the parties relates to the nature, extent and cost of the work involved. The pursuers do not found upon a written contract specifying the extent of particular work carried out, identifying the persons involved, work done, time allocated, outlays incurred or a rate to be applied to the work.

... In deciding this case I accept the ordinary presumption is that professional men who provide professional services are entitled to reasonable remuneration therefore ... However, there is an obligation upon any party, including a professional litigant to lay a sufficient basis by way of facts to give notice to the defender as to the amount of work that was done to justify the fee whether that fee be by way of an agreed contractual rate or a rate based on the RIBA scale fee. What is absent in this record is any detail specifying what work was done, when it was done, what the work entailed, how long and how often it was done. A Sheriff hearing a case based upon this record would be unable to identify from reading the record precisely upon what factual basis this claim is made. The proof if allowed would proceed blind as to the material facts. I do not understand how any Sheriff could determine an issue of relevance on this record.

In relation to the alternative case based upon unjust enrichment I entertain some reservations. A claim for unjustified enrichment arises in circumstances where there is no other remedy. In Bennett v Carse 1990 SLT 454 Lord Cameron of Lochbroom refers to the opinion of Lord Fraser in Varney (Scotland) Limited v Burgh of Lanark 1976 SLT 46: But in my opinion it would at least require special and strong circumstances to justify an action of recompense where there was or had been an alternative remedy open to the pursuer. In the case of Bennett v Carse the judge decided that an alternative case based upon unjust enrichment was not barred in circumstances where it might be said that the contract in question could not be established and accordingly he allowed a proof before answer on the alternative basis. In the present case the contract is admitted. In those circumstances in my view it would require strong and special circumstances to allow an alternative case based upon recompense. However, in the circumstances of the debate before me I did not require to decide that matter as I was satisfied that the criticisms made by Mr Craik of the pursuers' primary case based upon contract applied mutatis mutandis to the pled case based upon unjustified enrichment. Accordingly, in respect of both cases I will sustain the defenders third plea in law ..."

The Sheriff accordingly dismissed the action. Against that interlocutor the appellants now appeal.

 

Submissions for the appellants

 

5.             Solicitor for the appellants stated that his principal submission was that, on the basis of the material placed before the Sheriff, he erred in law in dismissing the action. His position was that the case was sufficiently specific and should have been admitted to probation. If I was against him on his principal submission, his alternative submission was that the Sheriff had failed to take into account the respondents fifth plea in law to the effect that the sum sued for was excessive. It was not in dispute that the appellants, a firm of architects, were engaged by the respondents to provide architectural services. Both parties accepted that those services related to Phases I and 2 of the development at Earls Gate Bothwell. It was not in dispute that the appellants were entitled to be paid a fee for the work which formed the basis of the action. There was no question of nothing being due by the respondents. There were no averments to support the respondents' fifth plea in law to the effect that the sum sued for was excessive. It was suggested that if that was the respondents' position, there was a lack of candour on the part of the respondents in that they did not specify what they considered a reasonable fee in the circumstances to be paid by them. It was suggested that the respondents' failure to suggest what a reasonable fee would have been was to avoid the inevitable and irresistible motion for interim decree.

 

6.             Against that background I was invited to examine the Sheriff's decision. In particular I was referred to page 2:

"It is not disputed by the defenders that the pursuers carried out work for them in relation to this development. The issue between the parties relates to the nature, extent and cost of the work involved. The pursuers do not found upon a written contract specifying the extent of particular work carried out, identifying the persons involved, work done, time allocated, outlays incurred or a rate to be applied to the work."

It was submitted that the assertion that the issue between the parties related to the nature, extent and cost of the work involved was not a correct analysis of the pleadings. That may be a correct analysis of the Rule 22 Note, but it was submitted this was not an analysis which could be made from the respective parties' pleadings. Breaking down the Sheriff's statement as follows:

"(1) The pursuers do not found on a written contract specifying the extent of particular work carried out."

It was submitted that neither party was contending that there was a written contract or letter of engagement.

"(2) Identifying the parties involved."

It was submitted that this related to the individuals in the appellants' organisation who had performed a particular task that the respondents had instructed to be carried out. There was no requirements in the written pleadings to identify which architect or trainee architect did which task. There would be evidence that the work was done.

"(3) Work done"

It was said that there was no detail of the work done. Solicitor for the appellants stated that he did not accept that criticism. I was referred condescendence 4 which I have set out in full in para 2 of this note. It was submitted on behalf of the appellants that adequate notice was afforded as to the nature of the work carried out by the appellants. It was accepted this may not mean much to those who do not have insight into what architects do, but it was submitted that it was not fatal that what was described was in architectural terms rather than lay terms. The respondents could consult another architect of their own choosing to explain matters if they wished.

"(4) The defenders not given any detail in relation to the time allocated by the pursuers to these services"

It was submitted that this was correct as far as crave two was concerned, but the first invoice, which was the subject of crave one,, having specified the work carried out, then stated that this took up 177.5 hours of time at £39.50 per hour. It was submitted that it was not correct to say that no notice was given regarding the time allocated to the first invoice.

"(5) No details of outlays incurred."

That was because there were no outlays charged.

"(6) No detail regarding the rates to be applied to the work."

It was submitted the first invoice gave an hourly rate of £39.50. As far as the second invoice was concerned, it was clear from the closed record that the respondents were being charged on the basis of the RIBA scale fee. It was averred that the outstanding fees in respect of Phase II were prepared on the same basis which fee was paid in full by the respondents as the initial fee rendered to the respondents in relation to Phase I. The invoice itself stated that the appellants had rendered a total fee to detailed planning approval of £25,000, less £7,500 which had previously been rendered and paid, giving a balance of £17,500. With VAT this gave the sum second craved of £20,562.50. It was pointed out that the Sheriff had recorded that he had been informed that here was no counterclaim in this case because loss sustained by the respondents, if any, had not been crystallised.

 

7.             I was then referred to answer 4 for the respondents which contained their response to the appellants' narrative:

"Admitted that the pursuers are Chartered Architects. Admitted that on the instructions of the defender company the pursuers have provided professional services to the defender company in respect of Phases I and II of a development known as Earls Gate Bothwell. Quoad ultra denied. ..."

It was accepted that, if the appeal was successful and the case proceeded to proof, on one reading of these averments, it was theoretically possible that the respondents' case was that none of the work set out in condescendence 4 was in fact carried out or, if it was carried out, it was not instructed by the respondents. In relation to quantum, the respondents, from their general denial, would appear to deny the RIBA have or formerly had a scale fee so that appellants would require to prove the existence or otherwise of scale fees.

 

8.             However, solicitor for the appellants noted that answer 4 continued at line 4:

"Explained and averred that the defenders were instructed to produce a development plan for the housing developments known as Phases I and II Earls Gate Bothwell. Explained that the pursuers were instructed to apply for planning permission for the development which they had planned. Explained and averred that in producing the development plan for Phase I they failed to take into account of the need for access for Phase II over the area of ground which formed Phase I. Explained and averred as a result of the pursuers' said failure it has not been possible to develop Phase II of Earls Gate.

Explained and averred that it was an implied term of the contract between the pursuers and defenders that the pursuers would act with the skill and care which is ordinarily to be expected of a firm of chartered architects. Explained and averred that a firm of chartered architects exercising the aforementioned skill and care would not fail to take account of the need for access to adjoining plots."

Accordingly, having initially admitted that the appellants did provide professional services for the defender company in respect of Phases I and II of the development, they go on to explain that the appellants were instructed to produce a development plan and to apply for planning permission. They continue that, in producing the development plan for Phase I, they failed to take into account the need for access to Phase II over the ground which formed Phase I and as a result it has not been possible to develop Phase II. They clearly state that this is the responsibility of the appellants. However, while they would appear to be alleging breach of contract, there are no averments of loss.

 

9.             It was submitted that up to this point, the appellants had not been put on notice that quantum was a live issue between the parties. In the event that (i) the identity or seniority of the persons doing the work was an issue, (ii) the hourly rate was deemed to be excessive, (iii) the former RIBA scale was in the category of unfair and unreasonable, then it was submitted, the respondents must put the appellants on notice that quantum is an issue. It was conceded that the case would require to go to proof, but if it was established that the appellants provided all the services identified in article 4 of condescendence which is set out, there was little scope in the pleadings for the respondents making a live issue of quantum. There were no calls for timesheets, dates, or specifications of persons involved in the contract. There were no averments that a fee based on an RIBA scale was excessive. The averments about payment of a previous fee for similar work in respect of the first invoice were ignored.

 

10.         Having thus analysed the record solicitor for the appellants had two main submissions:

"1. The Sheriff erred in law to the extent that, should quantum be a live issue in the case, insufficient specification had been provided.

It was submitted that the pleadings in condescendence 4 gave reasonable notice of the case which the respondents were being asked to meet. I was referred to Macphail Sheriff Court Practice para 9.27:

"A parties' averments in his condescendence or answers must specify sufficient facts to allow the party to lead all the evidence he desires to lead at the inquiry, and to give his opponent fair notice of what the party hopes to establish in fact ... If a parties' pleadings are attacked in debate and found by the court to be deficient in specification or relevancy, then his action may be dismissed ..."

and to MacKenzie on Written Pleadings para 12.88:

"However, "adequate specification" is almost impossible to define without resorting to general principle. The governing principle is that a party should give "fair notice" of the case being made. At the other end of the pleading spectrum, a party is not required to plead the evidence which is to be led. ... Plainly what constitutes fair notice will depend on the facts and circumstances of each case. ..."

and at para 12.90:

"In considering the degree of specification required, perhaps a useful test to apply is "can I properly prepare for proof?". If the answer to that question is "yes", then it would appear that there is sufficient specification in the pleadings."

If the defences were taken literally, the respondents, from their general denial, would appear to be denying the list of services set out in condescendence 4 were carried out. It was submitted that the respondents were given fair notice of what the appellants say was done by them. It was accepted that the appellants' pleadings were perhaps not a model of perfection, but there was sufficient information pled to put the respondents on notice as to what evidence was going to be introduced by the appellants. If there was something which might be said to be within their knowledge they were unclear about e.g. RIBA scale, that should not be met by a blanket denial. It was suggested that the respondents clearly had knowledge about what the appellants had done because they aver:

"admitted that on the instruction of the defenders the pursuers have provided professional services to the defender company in respect of Phases I and II of the development known as Earls Gate Bothwell".

They knew these services had been provided and they offer to prove in answer 4 that, as a result of the manner in which these services were provided, the appellants were in breach of contract. The Sheriff had stated at page 2 of his note:

"The issue between the parties relates to the nature, extent and cost of the work involved."

It was submitted this was not an issue which could be seen from the record. The defence pled was that the respondents admitted that, on their instructions the appellants had provided professional services in respect of Phases I and II of the development known as Earls Gate, Bothwell and they explain that the appellants were instructed to produce a development plan for the housing developments known as Phases I and II Earls Gate, Bothwell and to apply for planning permission for the development which they had planned. However, having done that work, the respondents' position is that the appellants breached their contract by failing to take into account the need for access to Phase II over the ground which formed Phase I. As a result of the appellants' failure it had not been possible to develop Phase II of Earls Gate. Accordingly the respondents were flagging up that they might introduce averments of loss to be set off against what was due in respect of fees.

 

11.         I was also referred to McBryde Law of Contract second edition para 9.46:

"Where there is a contract for services but no agreement on the amount of remuneration, the entitlement is to payment quantum meruit. If there is a customary rate, that is the amount paid if the custom can be proved to be reasonable, certain or notorious. If no custom can be established the court will fix a reasonable remuneration. The pursuer should aver and prove the sum due and the reasonableness of the charge. Unfortunately, the evidence sometimes is incomplete on the amount of remuneration and the court has to make the best assessment it can. The court will take account of professional tables of fees but will not apply them rigidly. The overall result must be reasonable ..."

It was submitted that when professionals were engaged and nothing was agreed regarding remuneration, it was not fatal that the pursuer does not have a time recording system if there are other means of demonstrating what fair and reasonable remuneration is. It was submitted there was adequate specification of the appellants case.

 

12.         If I was not with the appellants on their principal submission that there was adequate specification, their alternative submission was that the appellants were entitled to attach weight to the fifth plea in law for the defenders and the respondents to the effect that the sum sued for was excessive and decree should not be granted as craved. The Rule 22 Note contained a list of criticisms. In this case the respondents clearly had knowledge of what the appellants were instructed to do and they have accepted that professional services were provided by the appellants on their instructions. Indeed, such was the knowledge of what the appellants did and the way they went about it that they are comfortable to aver breach of contract on the part of the appellants. It was suggested, on a fair reading of both parties' pleadings, the respondents must be deemed to have knowledge of what the appellants had done. There was no plea in law directed to the fact that what the appellants averred was inaccurate. This, it was submitted, lent support to the interpretation of the defence which was "we admit you have done the work, but we do not want to pay you as you have committed a breach of contract".

 

13.         The fifth plea in law for the respondents was that the sum sued for was excessive. It was the appellants' position that a plea in law which is not supported by relevant averments was of no value. I was referred to Dobie on Sheriff Court Practice page 116:

"a preliminary plea, like a plea on the merits, must be founded upon averments in the pleadings."

and Macphail para 9.115:

"A plea on the merits cannot be either sustained or repelled without inquiry into the facts, unless these are agreed. ... Both types of plea must be supported by relevant averments in the pleadings, except those preliminary pleas to competency and relevancy which are based, not upon specific averments, but upon the nature of the case as laid or the pleadings as a whole."

It was submitted that, if it was the law that a plea in law must be supported by relevant averments, in this case there were no relevant averments pled which assisted the respondents in respect of the plea in law that the sum sued for was excessive. In short, the respondents were taking no issue about quantum as far as their averments are concerned. It was submitted that if a party to a litigation is in the dark as to the other party's position, the situation would be different. But here the appellants have been put on notice that there is an issue on quantum. It was submitted it was hard to see how the respondents could say that the sum sued for is excessive without having deemed knowledge of what the appellants have done.

 

14.         It was submitted that there was a price to be paid for using the plea in law "the sum sued for excessive". I was referred to page 185 of MacKenzie para 12.34:

"The classic error, as set out above, is to include the plea in law "the sum sued for is excessive" in circumstances were there is a general denial of other averments, for example relating to the contract or a particular incident. If the general denial is to be used, then a general denial only should be used, and the approach being taken can be explained and defended before the court."

 

15.         It was submitted it was difficult to reconcile the fifth plea in law that the sum for was excessive, without supporting averments, with their position in their Rule 22 Note which suggests complete ignorance of what in fact the appellants had done. A party could not aver that the cost was excessive if the parties' position was that they did not know what had been done.

 

16.         I was particularly referred to Grampian Hydraulics (Buckie) Ltd v Dauntless Marine Engineering & Supply Co Ltd 1992 SLT 45 at 47 where Sheriff Principal R D Ireland said:

"... a defender is under a duty to answer on matters which are clearly within his knowledge and cannot, as counsel for the pursuer put it, duck the issue by simply ignoring the averments made against him. Defenders should honestly answer the case made and it would, I think, make a mockery of our court proceedings if defences of this kind were to be remitted to probation.

The defenders in this case have made no attempt to define the issues which ought to be the subject of inquiry, although it is obvious from their own pleadings that they had the necessary information to make proper averments. The Sheriff was right in holding the defences, as stated, to be irrelevant and in granting decree de plano. The appeal is refused."

 

17.         It was submitted that that was the issue in this case. On the pleadings as they stood, the issue in this case was not the nature, extent and cost of the work involved. The respondents admit that the appellants provided professional services for them and that they instructed the appellants to produce development plans for the housing developments Phases  I and II Earls Gate and to apply for planning permission for the development which they had planned. It was submitted that the issue which was in fact in dispute in the pleadings related to whether the respondents are entitled to set off against fees against losses said to have accrued from breach of contract on the part of the appellants.

 

18.         Accordingly if I was against solicitor for the appellants in respect of his argument that there was indeed sufficient specification in this case, his alternative argument was that quantum was not an issue as far as the respondents' pleadings were concerned. On a fair reading of the respondents' case they clearly knew the nature, extent and cost of the work involved.

 

19.         I was asked to allow the appeal and fix a proof before answer.

 

Submissions for the respondents

 

20.         Solicitor for the respondents indicated that it appeared that the appeal was argued on two grounds (a) there were no averments to support his plea in law that the sum sued for was excessive and (b) that the Sheriff erred in law in holding that there was insufficient specification of appellants' case. He dealt with these in turn.

 

a. The appellants' fifth plea in law. The sum sued for was excessive

 

21.         It was submitted that the Sheriff had dismissed the action on the basis that he sustained the respondents' third plea in law "The appellants' averments being irrelevant et separatim lacking in specification, the action should be dismissed". If a Sheriff took the view that the appellants' case was so lacking in specification that it did not give fair notice, a proof should not be allowed. That was an end of the matter and consideration of the respondents' pleadings and pleas in law was unnecessary. It was submitted it was for the appellants to set out a case which gave fair notice to the respondents before they were obliged to answer. If the appellants had not given fair notice, the respondents pleading should not be analysed at all.

 

22.         In any event, it was submitted that plea in law 5 was sufficiently supported. The respondents' position was that, in circumstances where the pursuer failed to set out a specific case, it was extremely difficult for a defender to make detailed comments in response. It was said that appellants were not aware that quantum was at issue between the parties. That clearly was not the case. The purpose of the plea in law was to allow the appellants to draw the inference that quantum was an issue.

 

23.         The respondents criticisms of the appellants' case were set out in their two Rule 22 Notes. It was submitted there was no question of any lack of candour on the part of the respondents. They made their position clear to the appellants' solicitors both in correspondence and in the Rule 22 Notes.

 

b. Specification

 

24.         Solicitor for the respondents adopted the submissions which he made before the Sheriff which are recorded by the Sheriff in the following terms:

"At the diet of debate Mr Craik opened for the defenders and argued that there was a complete lack of detailed specification as to how the claimed sums had been arrived at. He submitted that there was no specification in relation to the time spent by the pursuers incurring this cost to the defenders. He complained there was no reference to what he called "raw data". There was equally no specification in relation to the individuals involved in the contract, who they were, what they did. Further no specification in relation to outlays incurred. He complained that the figures of £8,338.22 and £23,562.50 exist with no detailed accounts to support them. In relation to condescendence 4 which makes reference to the Royal Institute of British Architects scale of fees Mr Craik complained there was no specification in relation to the scale to be used. Mr Craik argued that his client had not been given fair notice of the detail in relation to the work done which would justify such large fees. In relation to the alternative argument based upon unjust enrichment Mr Craik essentially advanced the same argument. ... He repeated that his client simply did not have sufficient information in relation to the work done and that the pursuers' pleadings lacked specification in relation to what was done and how the sum sued for is arrived at. ... His complaint was that there was no specification of the nature and extent of the work in respect of which the rate would be applied to ..."

It was submitted that the obligation in pleading the case was upon the appellants to specify the circumstances which gave rise to their case.

 

25.         It was suggested that there were two areas in which specification was lacking in the pleadings in this case:

(a)           How the figures which appeared in the two craves were arrived at.

(b)          What the appellants say was done on the respondents' behalf.

Solicitor for the respondents dealt with these points separately.

(a) How the figures which appeared in the two craves were arrived at

It was said in the pleadings that the second sum sued for was arrived at by applying the RIBA scale of fees. Solicitor for the respondents complained that he did not know how the RIBA scale figures operate but, from what he was able to glean from the pleadings, they must operate in at least two separate ways. I was referred to the first inventory of production for the appellants which contained the two invoices which I have set these out in full in para 1 of this note. It was said in respect of the first invoice although the number of hours and the rate per hour were specified, there was no specification of what was done. In respect of the second invoice, there was no mention of the hours worked. It was accepted that the fee looked like a scale fee or a percentage fee and that the appellants had averred:

"The RIBA issue a scale of fees which identifies a reasonable fee having regard to the nature extent and value of the project in question. The pursuers would intend using said RIBA scale as a further tool in arriving at a fair and reasonable fee."

It was submitted that, if the appellants were relying on a scale, they needed to make raw data available. A scale on its own was a complete abstract. It was submitted there could be different types of data to be fed into a scale fee e.g. number of hours, rates for the time charged at, data re project value and possible percentage fee. It was submitted that, if the appellants intended to employ a scale fee as a foundation for a court action, then they must state not only that they were relying on the scale, but how the scale should be applied. It was accepted that there had been on behalf of the appellants comments about the way a professional man's time was charged and reference was made to McBryde on Contract. Solicitor for the respondents did not seek to escape that but what he submitted was that there had to be some basis on which the account was charged. It was submitted that the respondents had been unable to put meat on the focus of their plea that the sum sued for was excessive because of the lack of specification by the appellants.

(b) What was done and by whom

I was referred to condescendence 2 of the record where the appellants' aver:

"The pursuers provided professional services in respect of Phase II of the defenders' development. On the instructions of the defenders the pursuers prepared and lodged a planning application with South Lanarkshire Council. In support of this planning application the pursuers produced a number of drawing on behalf of the defenders. Copy drawings are produced and referred to. These drawings were received by South Lanarkshire Council and a planning application number was assigned ..."

and thereafter:

"The pursuers provided professional services in respect of Phase I of the defenders' development. On the instructions of the defenders the pursuers prepared and submitted an application for planning approval. Planning approval was obtained and a fee note rendered by the pursuers to the defenders. This fee note was paid in full. Following start on site by the defenders further services were provided by the pursuers. In particular the defenders deviated from the planning approval granted and accordingly the pursuers required to liaise with the Planning Department and SEPA."

It was suggested on the basis of the pleadings that it was impossible for the respondents to expand on their plea that the sum sued for was excessive. It was accepted there was no call by the respondents on the appellants to make further specification in the pleadings. It was submitted there was no duty to do that. It was for the appellants to make out their case.

I was referred to the case of Semple Fraser v Quayle 2002 SLT (Sh Ct) at 33 where Sheriff James Taylor (as he then was) said in relation to a solicitors' account:

"The defenders are entitled to a breakdown of how the pursuers arrived at the sum sued for ... In my opinion the defenders are entitled to fair notice of the case against him and fair notice has not been given. Furthermore a client must be entitled to say to a court that he never instructed certain work to be carried out by a solicitor ... In my view the client is entitled to be told what the solicitor has done and how the account is made up."

It was pointed out there was no specification of hours or a rate per hour in the larger account. The respondents were entitled to specification of what had been done on their behalf, by whom it was done and how the fee had been calculated. No such specification had been provided in this case.

 

26.         It was submitted that the Sheriff had not erred in law and that the pleadings lacked specification. I was asked to uphold the Sheriff's judgment.

 

Decision

 

27.         The issue in this case is essentially whether the respondents, on the basis of the pleadings as they stand, have been given fair notice of the case against them to enable them adequately to prepare for proof. If they cannot so prepare, or would be prejudiced by any lack of specification, the Sheriff was entitled to dismiss the action.

 

28.         The respondents do not deny receiving the two invoices which contain certain specification and which I have set out fully in para 1 of this note. They also have the material set out in condescendence 4 which I have set out in para 2 of this note. Having considered all that material, in my opinion it is necessary, in the circumstances of this case in deciding whether fair notice has been given, to consider, not only what is contained in the invoices and condescendence 4, but also what is said in answer thereto. I refer in particular to the passage in Macphail at para 9.115:

"... both types of plea must be supported by relevant averments in the pleadings, except those preliminary pleas to competency and relevancy which are based, not upon specific averments, but upon the nature of the case as laid or the pleadings as a whole."

In this case, I consider I am entitled to take into account the pleadings as a whole. In answer 4, which I have set out in full in para 3 of this note, the respondents admit that on the instructions of the appellants they provided professional services in respect of Phase I and II of the development known as Earls Gate, Bothwell. They explain that the appellants were instructed to produce a development plan for the housing developments known as Phases I and II Earls Gate, Bothwell and to apply for planning permission for the development which they had planned. They state that in producing the development plan for Phase I they failed to take into account the need for access to Phase II over the area of ground which formed Phase I and as a result it has not been possible to develop Phase II of Earls Gate. They suggest that it was an implied term of the contract between the parties that the appellants would act with the skill and care which is ordinarily to be expected from a firm of Chartered Architects and that, in exercising that skill and care, they would not fail to take into account the need for access to adjoining plots.

 

29.         There is no suggestion in answer 4 that the respondents are unclear as to what the appellants have done, nor any suggestion that the appellants have embarked on professional services which the respondents have not instructed. On a fair reading of answer 4, the respondents are saying that they admit that the appellants had been instructed to carry out work, in particular to produce a development plan and apply for planning permission in respect of Phases I and II of Earls Gate, Bothwell. It must be inferred from that the respondents accept that the appellants are entitled to be paid therefor. The Sheriff indicated that he accepted the ordinary presumption that professional men who provide professional services are entitled to reasonable remuneration therefore (Robert Allan & Partners v McKinstray 1975 SLT (Sh Ct) 63. In their pleadings the respondents suggest, not that the appellants were not instructed to do the work, nor that they did not do it, but instead they aver that the appellants were in breach of contract in that they failed to take into account the need for access to Phase II over the area of ground which formed Phase I and that as a result of this failure by the appellants it has not been possible to develop Phase II.

 

30.         The purpose of written pleadings is to focus what is in dispute. I take the view that it is appropriate, in deciding whether fair notice of the case the respondents require to meet has been given, to look both at condescendence 4 and answer 4 to determine what is in dispute in this case between the parties. As I have said, it would appear from answer 4 that what is essentially the issue between the parties is whether the appellants were in breach of contract in respect of the work they carried out in respect of Phase I. It is against that background that the question of fair notice in condescendence 2 requires to be considered.

 

31.         As far as crave 1 is concerned, the pleadings reveal that the appellants prepared and submitted an application for planning approval for Phase I which was obtained. A fee note was rendered by the appellants to the respondents and was paid in full. Following start on site by the respondents, further services were provided by the appellants. It appears that the respondents decided to deviate from the planning approval granted. The invoice supporting crave 1 records that the appellants carried out on site revisions and changes relative to title plans, importation of material, liaison with planning authority, SEPA, enforcement officer etc. It is stated that the additional work involved a total of 177.5 hours of professional time which was charged at £39.05 per hour. On the basis of that information, I consider that fair notice has been given to the respondents. The appellants would be entitled to lead evidence that they were instructed to do this work, that 177.5 hours was a reasonable time to carry out the work, and that £39.05 per hour was a reasonable rate for the work. It is significant that there are no specific averments in answer 4 that (1) the respondents did not instruct this additional work (2) the number of hours are excessive or (3) the rate charged was excessive. In my view fair notice has been given.

 

32.         As far as crave 2 is concerned, the sum sued for, in terms of the invoice is said to be "total fee to detailed planning permission". In answer 4 the respondents accept that they instructed the appellants to produce a development plan for the housing development at Phase II and to apply for planning permission for the development at which they had planned. The invoice notes that a payment to account of £7,500 was received. The total outstanding fee, including VAT is £20,562.50. The appellants case is that they are entitled to be paid a fair and reasonable fee for the work they carried out on behalf of the respondents. They offered to justify the fee on the basis of (i) the RIBA scale of fees which they claim identifies a reasonable fee having regard to the nature, extent and value of the project in question and (ii) the fact that the outstanding fees for Phase II were prepared on the same basis as the initial fee rendered to the respondents in respect of Phase I to detailed planning permission, which was paid in full by the respondents. In condescendence 2, which I have set out in full in para 2 thereof, the appellants set out in detail all that they did in connection with this planning application. They say they produced a number of drawings and lodged them with South Lanarkshire Council with an application for planning approval. They aver the steps they took to obtain quotations for landscape layout and design of the proposed development. The appellants claim they advised the respondents that they required to instruct other consultants in order to progress the planning application. The appellants explain that, on the instructions of the respondents, they formally withdrew the planning application for Phase II to obtain further information. They explain that the planning application could have been resubmitted to South Lanarkshire Council with no further fee being incurred within a period of 12 months. If the planning application had not been withdrawn, the planning authority would refuse the application due to lack of information. The appellants also set out the further steps which they took including liaising with South Lanarkshire Council, Historic Scotland, Scottish Water and SEPA. They indicate copy correspondence will be produced. There case is that the fee issued is comparative with the former RIBA scale and is in all the circumstances a fair and reasonable fee for the work carried out. They state that a fee calculated in a similar manner in respect of Phase I was paid by the respondents.

 

33.         As in Phase I, in their answers the respondents accept that they instructed the appellants to produce a development plan for Phase II and to apply for planning permission. They do not aver that they did not instruct the work. They make no averments in answer to the detailed averments in condescendence 2 of what the appellants say was done on their behalf. They do not answer the appellants' averment that the basis of the fee rendered in respect of Phase II was on a similar basis to that rendered in respect of Phase I to detailed planning permission, which fee was paid by them.

 

34.         On the basis of the pleadings as they stand, I consider the appellants would be entitled to lead evidence that they received instructions to prepare a development plan and to present an application for detailed planning permission in respect of Phase II. They would be entitled to lead evidence of all the matters set out in condescendence 2, and in particular those to which I have referred in the proceeding two paragraphs. They will be entitled to lead evidence of RIBA scale fees and to compare the fee charged with that accepted and paid by the respondents in respect of Phase I.

 

35.         In my view it is of significance, standing the admissions made by the respondents on record, that there are no averments at all in the defences in which the respondents specify exactly why they consider the sum claimed to be excessive. The defences, as drawn, appear to be related to breach of contract. If the appellants are in breach of contract on the basis that, in producing the development plan for Phase I for which they obtained planning approval, they failed to take into account the need for access to Phase II over the area of ground which formed Phase I, it may be the case that (a) the appellants are not entitled to be paid any further professional fees and (b) the respondents have a claim for damages against the appellants. However, there are no averments at all to that effect in the defences at this stage.

 

36.         In the circumstances which I have set out, I take the view that there has been fair notice given of the case which the respondents are required to meet to allow them to prepare for proof. I am prepared to allow parties, before answer, a proof of their respective averments. The expenses of the debate and the appeal go to the successful party, namely the appellants.