A7619/04
JUDGMENT
OF
SHERIFF PRINCIPAL
JAMES A TAYLOR
in the cause
McKindless Bus Company
APPELLANTS/PURSUERS
against
Peter Davidson
RESPONDENT/DEFENDER
GLASGOW,
January 2007.
The Sheriff Principal, having resumed
consideration of the appeal, Refuses the appeal; Adheres to the interlocutor of
the Sheriff; Finds the appellants liable to the respondent in the expenses
occasioned by the appeal as these might be taxed; Allows an account thereof to
be given in and upon it being lodged remits the account to the Auditor of Court
to tax and to report; Certifies the cause as suitable for the employment of
junior counsel.
NOTE:-
INTRODUCTION
[1] The appellants and pursuers (hereinafter
"the pursuers") were the employers of the respondent and defender
(hereinafter "the defender").
The defender's duties included driving the pursuers' buses. The pursuers offered to prove that on two separate
occasions the defender had driven a bus belonging to the pursuer without
exercising reasonable skill and care. As
a consequence, on two separate occasions, the bus being driven by the defender
collided with motor cars belonging to third parties. Both cars sustained damage in the two incidents. The pursuers settled the third party claims
on the basis that they were vicariously liable for the actings of their
employee. The pursuers did not intimate
the claims from the third parties to the defender. Settlement of the claims was made by the
pursuers without reference to the defender.
The pursuers then sued the defender for inter alia relief in respect of the payments to the third
parties. The action was based upon
delict. Mr Hardman, Advocate, who
appeared on behalf of the defender, intimated that prior to any proof taking
place the pursuer would seek leave to amend in order to reformulate the case to
one based upon contract rather than delict.
Nonetheless parties agreed that I should hear the appeal and I was happy
to do so. The essence of the learned
Sheriff's decision was that since the pursuers had settled the claim against
the third parties without reference to the defender and without having the debt
in respect of which they now sought relief constituted against them, the
pursuers had lost the remedy of relief.
APPELLANTS'
SUBMISSIONS
[2] Mr Hardman accepted that National Coal Board v Thomson 1959 SC
353 was an obstacle to his appeal succeeding.
In that case the Inner House held "that a joint and several decree,
or some equivalent instrument constituting the debt, was an essential pre-requisite
to an action of relief; that such constitution was implicit in sec. 3 of the
Law Reform (Miscellaneous Provisions) (Scotland) Act, 1940; and that, since the
debt lacked such constitution, the action, in so far as it was one of relief,
was irrelevant." Mr Hardman invited
me to distinguish Thomson. He submitted that there were three
distinguishing features. In this case
the pursuer offered to prove (1) that the damage was sustained as a result of
the fault on the defender's part; (2) that the pursuers had paid damages to the
third parties; and (3) that the amount paid was reasonable. These three elements were said to be missing
in Thomson. Mr Hardman accepted that I would have
"to imply" into the present record, as he put it, an averment that
the amount paid was reasonable. While
there was a plea‑in‑law to that effect there was no supporting
averment. Mr Hardman relied heavily on
the dissenting opinion of Lord Strachan in Thomson. He submitted that in some respects it could
be said that what the pursuers offered to prove in this case put the defender
in a better position than might have been the case had the pursuers met the
requirements set out in the opinion of Lord Justice-Clerk Thomson. He submitted that the basis upon which the
Lord Justice-Clerk said that certainty was required in the form of a decree
against the appellant was set out in the opinion of Lord Patrick at page 372
which is in the following terms:-
"It is true that the pursuers aver and plead that
the accident was caused to an equal extent by the fault of their servant and by
the fault of the defender's servant, but their counsel would not clearly
concede that they must prove that averment or fail in their action. Indeed, under the common law right of relief,
which they rely on, they need not prove that averment. Under that law, joint delinquents, whatever
their respective degrees of fault, are liable pro rata according to their number."
RESPONDENT'S
SUBMISSIONS
[3] Mr Cruickshank, Advocate, appeared on
behalf of the defender. In his
submission the case of Thomson was
binding upon me. He submitted that in
order for the pursuers to succeed, a judicially constituted debt was
required. He referred me to Walker on
Delict at pages 151 and 418 to 420.
In his submission the pursuers ought to have allowed an action to be
raised against them and then brought the defender in as a third party in order
that the whole matter could be resolved in the one process. He also referred me to Walker: The Law of Contracts and Related Obligations
in Scotland (3rd Edn) at paragraph 27.16. He then referred me to the cases of Clarke v Scott (1869) 23 R 442; Gardiner v Main (1894) 22 R 100 and Ovington v McVicar (1864) 2 M
1066. In his submission it was not
enough to offer to prove fault and reasonableness of quantum. The pursuers, by settling at a prior stage
without intimation and the consent of the defender, had compromised their claim
and thus the action was irrelevant.
DISCUSSION
[4] Lord Justice-Clerk Thomson, after
reviewing the speech of Lord Watson in Palmer
v Wick and Pulteneytown Steam
Shipping Company Ltd (1894) 21 R (HL) 39 said that Palmer settled the position that if there was a joint and several
decree against a joint wrongdoer there was pro
rata contribution and relief. That
left open the question of "whether a pursuer seeking relief was ruled out
unless he was armed with a decree or a bond". (Page 363).
[5] In Thomson
the pursuers' van was in collision with the defender's lorry. A third party was injured as a result of the
collision. The third party intimated a
claim against the pursuers. The
defender, unlike the present situation, was given notice of the claim. Also unlike the present situation, the
defender was invited to join in the settlement discussions. A further distinction from the present case
is that before settling the third party claim, the defender was informed of the
amount of settlement and took no objection to it. Thus the pursuer in Thomson was in a stronger position in this context, than the
pursuer in this action. In Thomson the pursuers sought a pro rata contribution of one-half of the
sum paid by them. This notwithstanding the
court held that there required to be constitution of the debt. Lord Justice-Clerk Thomson explained the
position thus at pages 364 to 365:-
"However that may be, there are good practical
reasons for insisting on constitution.
If the injured party and the co-delinquent, whom the former takes as the
one to pay, makes a settlement, there is no guarantee that it is a proper one,
or even that it is genuine. On the other
hand, if constitution is insisted on, in the Palmer type case, where all the co‑delinquents are sued,
there can be no possible prejudice. In
the Corporation of Glasgow type of
case, where one only is sued, while connivance cannot be entirely ruled out,
there is a high probability that the judicial determination will be on a
satisfactory basis. Moreover, where one
wrongdoer is sued alone, it is clearly his duty, as was done here, to keep the
other wrongdoers, or those who may, in his view, turn out to be joint
wrongdoers, informed of the situation as it develops. The other wrongdoers or possible wrongdoers
must then consider their positions. One
would expect that, if they were clearly implicated, they would be only too
ready to come to some arrangement. If,
on the other hand, they thought that they were not implicated, the position
would be that, if they were right in thinking that they were not implicated, they
would be able to keep out and to repel any action of relief; whereas, if they
were wrong in thinking that they were not implicated, they would pay the just
penalty for their error of judgement.
Accordingly, there is practical good sense in demanding constitution,
and, without it, matters might slip into an unsatisfactory and uncertain
state. As relief is essentially an
equitable remedy, parties ought to know precisely where they stand."
In my opinion
the practical advantages set out by Lord Justice-Clerk Thomson are
overstated. However the case is binding
upon me and I must follow it.
[6] I do not consider the attempt by Mr
Hardman to distinguish the present case from Thomson succeeds. It would
appear from the passage from Lord Patrick's opinion quoted supra that there may
have been a reluctance on the part of the pursuers' counsel to commit to
precisely what he had to prove. However
there was nonetheless an averment by the pursuers in Thomson that the accident was caused to an equal extent by the
fault of the pursuers' servant and by the fault of the defender's servant. That can be seen in the pleadings as such are
set out on page 355 of the report. In
article three of condescendence the pursuers aver "The said accident was
caused to an equal extent by the fault and negligence of the pursuers' servant,
the said David Law, and by the fault and negligence of the defender's servant,
the said Peter MacFadyen..." The
pursuers' counsel's reluctance to commit to the necessity of proving that
averment could have been that he required to prove only some culpability on the part of the defender to recover one-half of
the sum paid in damages. That is because
the pursuers were relying upon a common law right of relief as opposed to any
statutory right. Thus the first of Mr
Hardman's three distinguishing features is in my opinion not made out. In both cases the pursuers have offered to
prove fault on the part of the defender.
[7] The second distinguishing feature was said
to be that the pursuer in this case offered to prove loss on its part. That loss is the sum paid to the third
party. I do not see how that
distinguishes this case from that of Thomson. In Thomson
there was an averment "Under threat of legal proceedings by the said
Robert Galloway, the pursuers settled the said claim by payment of the sum of
£2,000 to the said Robert Galloway arising out of the said accident." Similar, but less elegant, averments are made
in articles two and four of the condescendence in this case. The pursuers in both actions offer to prove
that they have sustained loss. Thus the
second feature said to distinguish this case from that of Thomson is also not made out.
[8] The third distinguishing feature said Mr
Hardman was the offer by the pursuers to prove that the damages paid by them to
the third party were reasonable.
However, close scrutiny of the pleadings in Thomson discloses the following averment "The said sum of
£2,000 was a moderate estimate of the loss, injury and damage sustained by the
said Robert Galloway." Thus the
third distinguishing feature is not made out.
Accordingly the present case cannot be distinguished from Thomson.
The appeal must therefore fail.
[9] I should record that no submissions were
made with regard to the fact that this case was pled as a common law case as
opposed to a statutory case.
[10] In the course of the discussion before me,
and it would appear before the learned Sheriff, no reference was made to the
second crave. That is for damages
sustained by the pursuers to their own vehicle and said to have flowed from the
defender's breach of duty. One immediately sees that such a claim is not
in the nature of a right of relief. Thus
the attack on the pursuers' pleadings before the learned Sheriff and before me would
not appear to extend to this head of claim.
I have given consideration to putting the case out by order to be
addressed further on this
point. However, given Mr Hardman's
avowed intent to amend to change the basis of the action to a breach of
contract as opposed to a breach of a delictual duty and the amount involved, I
have decided that I should not do so. It
is still open to the pursuers to raise a small claim against the defender in
respect of this crave. Indeed
it would still be open to the pursuers to explore whether an assignation from
the third party would be of any benefit to them.
[11] It was agreed that expenses should follow
success and that the appeal should be certified as suitable for the employment
of junior counsel. My interlocutor
reflects this.
