Scottish Sheriff Court Decisions

SHERIFFDOM OF SOUTH STRATHCLYDE, DUMFRIES AND GALLOWAY AT HAMILTON

A2736/08

JUDGMENT

of

SHERIFF PETER G L HAMMOND

in the cause

COATBRIDGE RETAIL NO. 1 LIMITED, a company incorporated under the Companies Acts (registered number 04848029) and having its registered office at Queens Villa, 78 Ashley Road, Hale, Altrincham, Cheshire, WA14 2UF.

PURSUERS

against

JEROME OLIVER, residing at The Gables, East Overtoun House, Strathaven, ML10 6SZ.

DEFENDER

 

Act: Ms. Dalziel

Alt: Ms. Williams

 

HAMILTON, April 2010

The Sheriff, having resumed consideration of the cause, SUSTAINS the pursuers' plea in law number 1 to the extent of excluding from probation (a) the defender's averments in Answer 9 relating to a variation of the lease and the defender's reliance thereon, and (b) the defenders' averments in Answers 10 to 20 inclusive; SUSTAINS the pursuers' pleas in law numbers 6, 7 and 8; GRANTS DECREE of declarator in favour of the pursuers in terms of crave 1, GRANTS DECREE against the defender for payment to the pursuers in respect of the sums craved in craves 6 to 16 inclusive; REPELS the defender's pleas in law numbers 1, 2 and 4; Quoad ultra allows parties a proof of their averments; FINDS the defender liable to the pursuers in the expenses of the debate; ALLOWS an account thereof to be given in and remits the same when lodged to the auditor of court to tax and report; APPOINTS the cause to the Procedure Roll on 2010 at for a Proof Before Answer to be fixed.

 

 

NOTE:

 

Statutes referred to

Requirement of Writing (Scotland) Act 1995:

1. Writing required for certain contracts, obligations, trusts, conveyances and wills.

..... (2) Subject to subsection (3) below, a written document complying with section 2 of this Act shall be required for-

(a) the constitution of-

(i) a contract or unilateral obligation for the creation, transfer, variation or extinction of an interest in land;......

 

(3) Where a contract, obligation or trust mentioned in subsection (2)(a) above is not constituted in a written document complying with section 2 of this Act, but one of the parties to the contract, a creditor in the obligation or a beneficiary under the trust ( "the first person") has acted or refrained from acting in reliance on the contract, obligation or trust with the knowledge and acquiescence of the other party to the contract, the debtor in the obligation or the truster ( "the second person")-

(a) the second person shall not be entitled to withdraw from the contract, obligation or trust; and

(b) the contract, obligation or trust shall not be regarded as invalid,

on the ground that it is not so constituted, if the condition set out in subsection (4) below is satisfied.

 

(4) The condition referred to in subsection (3) above is that the position of the first person-

(a) as a result of acting or refraining from acting as mentioned in that subsection has been affected to a material extent; and

(b) as a result of such a withdrawal as is mentioned in that subsection would be adversely affected to a material extent.

 

Cases referred to

(1)   Tom Super Printing Supplies Ltd. v South Lanarkshire Council, (unreported); Outer House (Lord Hamilton) 28 September 1999.

(2)   The Advice Centre for Mortgages v McNicoll 2006 SLT 591

(3)   Mitchell v Caversham Management Ltd [2009] CSOH 26

(4)   Caterleisure Ltd. V Glasgow Prestwick International Airport Ltd. 2005 SLT 1083

Background

[1]          This action relates to a registered lease over subjects at Unit AA, 1^st Floor, The Quadrant Centre, Coatbridge. The pursuers are landlords and the defender is tenant. The pursuers seek decree of declarator that the lease has not terminated and remains in full force and effect. They further seek payment of sums said to be due to them in terms of the lease. The defenders maintain that, as a result of an informal agreement between the parties, the terms of the lease were varied so that the defender was entitled to terminate the lease early; which he validly did.

[2]          The action called before me on 25 January 2010 for debate on the pursuers' preliminary pleas in law number 1 and 7.

Argument for Pursuers

[3]          On behalf of the pursuers, Ms. Dalziel explained that the issue was whether there was a valid agreement to vary the terms of the lease. The defender avers that the lease was varied informally by discussion and certain correspondence. The pursuers' argument was that the variation of the lease would be a variation of a real right in land. In terms of section 2 of the Requirements of Writing (Scotland) Act 1995, such a variation must be in writing. The defender avers that notwithstanding that absence of formal writing, he acted on reliance on the variation and has been adversely affected to a material extent, so that in terms of section 1(3) and (4) the pursuers are not entitled to withdraw.

[4]          The defender required to prove that he relied on the varied lease to the knowledge of the pursuers. However he has failed to aver that the acts referred to were with the knowledge and acquiescence of the pursuers.

[5]          Mrs. Dalziel submitted that the defender's case based on variation of the lease was irrelevant and invited me to sustain the pursuers' first and seventh pleas in law, and grant decree of declarator that the lease remained in force and had not been terminated (crave 1). She also sought decree for payment in respect of certain other craves, the defence to which rested upon the proposition that the lease had been validly varied and terminated.

[6]          According to Ms. Dalziel, the relevant facts were that the defender entered into a lease with City Site Estates plc to rent a retail unit at the Quadrant Centre, Coatbridge. The lease was registered in the Books of Council and Session on 30 December 2002. The landlord's interest in the lease was acquired by the pursuers in October 2003. The lease was for a period of 10 years from 1 October 2002 to 30 September 2012. Clause Third of the lease includes a break provision in the following terms:

"...Notwithstanding the foregoing, either party may terminate this Lease with effect from the First day of October Two Thousand and Seven by giving not less than six months written notice to the other (time being of the essence)".

[7]          The defender does not aver that he gave the requisite six months written notice of intention to exercise the break option, but does aver that the lease and breach option were varied informally by discussions with Jim Brown, the Quadrant Centre Manager, (an employee of the pursuers) in March 2007. In particular, the defender founds on letters from Jim Brown dated 20 April 2007, a letter from Martin O'Rourke of Riddell TPS (the pursuers' management agent) dated 11 May 2007, and further discussions between the defender and Mr. O'Rourke in May 2007.

[8]          The defender's position on Record is that the lease was informally varied to become a one year "rolling" lease, and that the defender then validly terminated it, with effect from 30 September 2008, by letter dated 27 February 2008. The pursuers aver that there was no agreement to vary the lease, and in any event Jim Brown had no authority to enter into any such agreement on behalf of the pursuers. For the purposes of this debate however, they argue that even if there was such an agreement, it was not valid as it was not in writing as required by the 1995 Act, and the defender had not averred sufficient facts to bring sections 1(3) and (4) of the 1995 Act into play and so prevent the pursuers withdrawing from the inchoate agreement.

[9]          The pursuers relied on these propositions:

(a)  The constitution of a variation of this lease would be a variation of a real right in land in terms of section 1 of the 1995 Act.

(b) In terms of section 1(2)(a), the constitution of a variation of the lease requires to be in writing conform to section 2.

(c)  The constitution of the variation averred by the defender was not in writing conform to section 2.

(d) The pursuers are entitled to withdraw from any variation of the lease, unless the defender had acted or refrained from acting in reliance on the variation with the knowledge and acquiescence of the pursuers, and has been affected to a material extent in doing so.

(e)  The defender has failed to sufficiently aver that he acted, or refrained from doing so, in reliance on the purported variation with the knowledge and acquiescence of the pursuers.

[10]      It was not in dispute that a variation of the lease would be a variation of a real right, as it was in respect of a lease for a period exceeding one year (section 1(7)). It was accepted that the proposed variation would require to be in formal writing, subject to the exception provided for in section 1 (3) and (4). Section 2 (1) of the 1995 Act requires subscription of the granter for formal validity. Section 7 sets out the technical requirement for valid subscription. The defender's averment in Answer 9 at page 13 of the Record that "The lease does not comply with section 2 of the said Act as it is not in the required form" must refer to the lease as varied in the manner contended for by the defender. The variation refers to "discussions", and these plainly cannot be subscribed.

[11]      The situation was one where, even had there been consensus in idem for an informal variation, the pursuers were entitled to withdraw from unless the defender could bring himself within the exception provided for in sections 1(3) and (4) of the 1995 Act.

[12]      The defender's averments directed at bringing him within the ambit of the section 1(3) and (4) exception are to be found in Answer 9 at page 14 of the Record. It is there averred that the defender acted in reliance on the varied lease by continuing to pay rent, service charge and insurance premiums to the pursuers, and that the pursuers acquiesced in the variation of the lease by accepting these payments. It is submitted that these averments are irrelevant. Even if the defender proved these averments, they would not be sufficient to bar the pursuers from withdrawing from a variation. There were two grounds for saying this: Firstly, any acting or refraining from acting must be specifically referable to the varied lease. Secondly, the specific acting or refraining from acting must have been known to the pursuers and acquiesced in by them.

[13]      In relation to the first of these points, I was referred to the case of Tom Super Printing Supplies Ltd v South Lanarkshire Council (Unreported), Lord Hamilton, Outer House 28 September 1999. The court held that where a party sought to enforce a contract as varied, which did not comply with s 1 (2) of the 1995 Act, the acts sufficient for s 1 (3) and (4) to apply had to be clearly referable to the terms of the contract as varied, and acts equally consistent with the contract prior to variation were not sufficient. Most of the acts relied on by the pursuers predated the variation, and the subsequent acts averred, were no more referable to the contract as varied than to it prior to variation. Ms. Dalziel submitted that this decision was in point because the payments made in the present case were referable to the original written lease. The original lease required payment of all of these sums, so the defender was not entitled to rely on them as demonstrating a variation.

[14]      I was also referred to the case of The Advice Centre for Mortgages v McNicoll 2006 SLT 591, in which Lord Drummond Young made the same point at paragraph [33]

[15]      In relation to the second of these points, reliance alone is not enough. For section 1(3) to apply, the acting or refraining from acting in reliance on the contract must be with the knowledge and acquiescence of the other party. I was referred to the opinion of Lord Bracadale in Mitchell v Caversham Management Ltd [2009] CSOH 26. This was another case where informal variation of a contract was argued for by reference to section 1(3) and (4). The case centred on the status of an informal letter following upon concluded missives for the sale of heritable property, and whether various meetings and payment of fees to solicitors in the context of an ongoing transaction could be regarded as acting or refraining from acting in a manner which was referable to the variation of the contract set out in the letter. As Lord Bracadale put in at paragraph [23] "...in order to satisfy the test in the 1995 Act it would not be sufficient that the defender knew generally that the pursuers were arranging their affairs in reliance on the fact that the contract had been varied. It seems to me that what is required is for the pursuers to be able to point to specific acting's or examples of refraining form acting, and that these must be known to an acquiesced in by the other party.." In the present case, the defender has failed to aver sufficient knowledge and acquiescence on the part of the pursuers. The defender simply avers that the pursuers were aware, or ought reasonably to have known, that the defender was relying on the terms of the lease, by reference to the payment of rent, service charge and insurance premiums.

[16]      In Answer 9 at pages 14 -15, the defender's averments in relation to his decision, along with his wife, to pursuer adoption, are clearly irrelevant. There are no averments that the decision to pursuer adoption was with the knowledge and acquiescence of the pursuers.

[17]      The variation contended for by the defender is a variation of a real right in land and requires to be constituted in writing in accordance with section 2 of the 1995 Act, unless it can be brought within the ambit of section 1(3) and (4). In this case the defender has not sufficiently averred these essential ingredients.

[18]      The pursuers therefore moved me to sustain the pursuers' pleas in law numbers 1 and 7, and grant decree of declarator in terms of crave 1. In relation to the craves for payment, the defender may say that the level of arrears, service charge and insurance are not agreed, but the level of sums claimed are only denied on Record in relation to the sums sought in craves 2, 3,4 and 5. The denials in answer to the other craves (craves 6 to 16) rest solely upon the proposition that the lease was varied. If I were to find in favour of the pursuer and grant decree of declarator as first craved, it followed that I should therefore grant decree for payment in respect of craves 6 to 16. It was accepted that there would have to be a proof in relation to the sums claimed in craves 2,3,4 and 5, and I should therefore allow a Proof Before Answer only in relation to the averments in support of these craves.

Argument for defenders

[19]      On behalf of the defender, Ms. Williams referred me to the terms of the lease, and in particular, clause THIRD. The lease was for a period of 10 years from 1 October 2002 to 30 September 2012. This clause contains an option for either party to exercise a break after 5 years. This would operate by giving not less than 6 months notice to terminate on 1 October 2007. There were various informal communications between the parties and their agents about the arrangements for the lease, and the correspondence produced by the defender was incorporated in the pleadings brevitatis causa.

[20]      The defender had sent a letter 6/1/1 of process to Jim Brown of the pursuers on 20 April 2007, stating that he did not wish to renew the lease for a further 5 years from October.

[21]      In Answer 9, the defender avers that there was a conversation between Jim Brown and the defender when agreement was reached to vary the lease and exercise the break option. The defender's position is that this amounted to a variation of the lease, as Jim Brown said to the defender that writing was not needed for it to be valid. Mr. Brown had been at that time Centre Manager at the Quadrant Centre. The letter of 20 April 2007 was sent to Mr. Brown as confirmation of discussions after this variation.

[22]      On 11 May 2007, Martin O'Rourke of Messrs. Riddell tps, surveyors, wrote to the defender (production 6/1/2) on behalf of the pursuers confirming that there was "no objection to you being granted a one year rolling lease on the same terms and conditions as the existing lease". In terms of the lease, notice would have to have been given by 30 March 2007 if the break were to be exercised. The conversation between Jim Brown and the defender was at the beginning of March 2007 and thus timeous in terms of the deadline for notifying exercise of the break. The letter went on to state, "I would be grateful if you could confirm you are agreeable to this and I will arrange Heads of Terms to be prepared and solicitors to be instructed."

[23]      Following receipt of that letter, the defender contacted Mr. O'Rourke by telephone to agree terms.

[24]      By letter to Mr. O'Rourke dated 29 February 2008 (production 6/1/3), the defender gave notice of his intent to vacate the premises on 30 September 2008. The position resulting from the parties' dealings was thus that after exercising the break option to end the lease at 30 September 2007, the defender's tenure was changed to that of a one year; the first year of that rolling lease being 1 October 2007 to 30 September 2008. In terms of the notice required to bring to an end the one year rolling lease, the defenders founded on the letter of 11 May 2007 from Mr. O'Rourke which proposed that the one year rolling lease would be "on the same terms and conditions as the existing lease". The lease provided for a notice period of six months in the event of a party wishing to bring the lease to an end by exercising the break option on 1 October 2007. The argument therefore was that the six month notice period would also apply to each annual rolling lease or renewal thereof. The effect of the variation agreed between the parties in this way was that the defender became tenant by virtue of a rolling one year lease. All the defender had to do to terminate the rolling one year lease at the end of the first year (30 September 2008) was to give six months notice.

[25]      The defender's letter to Mr. O'Rourke of 29 February 2008 was his notice that he intended to terminate the rolling lease at the end of September 2008. That is valid and timeous notice, as the last day to accommodate a six month notice period would be 30 March 2008.

[26]      Ms. Williams accepted that the obligation contended for by the defender was a variation of a real right in land, which required to be constituted in a written document complying with section 2 of the 1995 Act. As the variation was not so constituted, she accepted that to have any prospect of success, the defender had to successfully invoke the statutory personal bar exception to be found in section 1(3) and (4) of the Act.

[27]      In addressing the tests set out in s 1(3) and (4) the defender had made sufficient averments. In Answer 9 at the top of page 14 of the Record it was averred that "The defender acted in reliance of [sic] the varied lease. Knowledge and acquiescence of the pursuers is also averred, and said to be demonstrated by their acceptance of the defender's payments of rent, service charges and insurance premiums.

[28]      Ms. Williams referred me to the case of Caterleisure Ltd v Glasgow Prestwick International Airport Ltd 2005 SLT 1083. This was a case where in advance of a formal written contract being drawn, up an oral agreement was reached that the pursuers should commence operations on the basis of the inchoate contract. It turned out that the contract did not receive the endorsement of the new shareholders and the defenders were taken off the contract on the day they commenced operations. They averred that they would lose intended benefits under the contract, and these averments were attacked as being irrelevant. At paragraph 16 of the opinion, the court considered the relevancy of the pursuers' averments for the purposes of section 1(4)(b) of the 1995 Act. This is the requirement that a party should have been "adversely affected to a material extent" before being able to invoke the protection of section 1(3) and (4). The court stated... "the issue is one of degree to be determined in the particular circumstances of an individual case. The statutory test is simple, referring only to the materiality of adverse effects, and in our opinion it cannot be said that the Lord Ordinary wrongly exercised his discretion in allowing a proof before answer...."

[29]      On the basis of this authority, Ms. Williams argued that the defender's pleadings demonstrated a sufficient materiality of adverse effects by reference to the averments in Answer 9 about the proposed adoption and the loss of money. The averments about the continued payment of rent, the pursuers' refusal to return the deposit, the payment of legal expenses in defending the action and the matter of the adoption were all matters for proof.

[30]      Ms. Williams summarised the defender's submissions as follows. Jim Brown's discussions with the defender in March 2007 constituted a variation of the lease to the extent that there was agreement that notification of the break option being exercised did not require to be in writing. A rolling lease was then proposed and agreed upon Thereafter that arrangement was confirmed in the letter dated 11 May 2007. The telephone conversation between Mr. O'Rourke and the defender referred to in Answer 9 (4 lines from the foot of page 12) shows that the pursuers knew of the defenders' reliance on the variation. Thus the pursuers had knowledge of and acquiesced in the defender's actings in reliance on the variation of the lease. In the 1995 Act, knowledge and acquiescence of the pursuers is in relation to reliance of the defender on the variation, not the degree to which the defenders was affected to a material extent. The defender did everything within the proper time and in accordance with the varied agreement. The pursuers are thus prevented from withdrawing from the variation of the lease or treating the variation as invalid.

[31]      Mr. Williams invited me to repel the pursuers' pleas in law numbers 1 and 7, and allow a Proof on all the issues raised. She also moved me to award the expenses of the debate in favour of the defender. She accepted that if the pursuers were successful in their primary submission, then their craves 6 to 16 for payment also fell to be granted, as the defence to these matters rested upon the variation and termination of the lease as contended for by the defender.

Pursuers' response

[32]      Ms. Dalziel made further brief submissions in response to the defender's submissions. The defender had submitted that the break was exercised by discussion with Jim Brown in March 2007. Two points arose from that. Firstly, clause Third of the lease required that any notice be in writing. Secondly, the defender's pleadings in Answer 9 do not aver that the break option was actually exercised. The averment is in fact that the lease was varied to a one year rolling lease allowing a later exercise of that break option in 2008.

[33]      With regard to the pursuers' case on variation, the defender accepts that for any such variation to be valid and binding on the pursuers, the defender must bring himself within the ambit of section 1(3) and (4). In the defender's own submission, the defender has referred to rent and other charges being payable on a monthly basis. The averment in Answer 3, at page 6, is that the pursuers "originally agreed to accept payment on a monthly basis for the limited period of 6 months commencing 28 November 2002. This agreement continued past April 2003....." The variation contended for the by the defender took place, according to him, in 2007, and the acceptance of payments on a monthly basis from 2002 obviously cannot be referable to something many years later.

[34]      The pursuers do not dispute the proposition in the Caterleisure case, and accept that the materiality of adverse effects would be a matter for proof. However, the defender would still have to aver acts referable to the variation of the lease and circumstances demonstrating knowledge and acquiescence on the part of the pursuers. The defender has failed to do so and his defence to the substantive part of the action must fail

[35]      Ms. Dalziel invited me to sustain pleas in law 1 and 7 for the pursuers, grant decree of declarator in terms of crave 1 and decree for payment in terms of craves 6 to 16. Thereafter I should allow a Proof Before Answer in relation to craves 2,3,4 and 5.

Discussion and Decision

[36]      The lease is a formal document which itself contains provisions of a formal nature by which it can be brought to an end. The break option in clause Third is exerciseable by giving not less than six months notice in writing. By a convoluted succession of informal discussions and correspondence, which do not appear to have been followed up by any formal writing, the defender seeks to assert not only that the lease was varied, but it's whole character as a formal lease for a term of years died and was reincarnated as an informal lease on a year by year "rolling" basis. Furthermore the defender seeks to bypass the formal mechanisms provided for in the lease itself by asserting that even the requirement for written notice was informally varied by the parties. Anyone querying the necessity for section 2 of the 1995 Act need look no further than the present case.

[37]      The variation contended for the by the defender is an obligation which requires to be constituted in writing conform to section 2 of the 1995 Act. As it does not so comply, the defender accepts that in order to succeed he must fall back on section 1(3) and (4) of the Act. If section 1(3) and (4) are not met, then any variation of the lease is not valid and there is nothing to prevent the pursuers from withdrawing from it.

[38]      The defender submitted that there are averments detailing that he has been affected by the matters referred to on Record, and the materiality of those would be a matter for proof having regard to section 1 (4) and the Caterleisure case. Be that as it may, the defender has two crucial hurdles to overcome before getting to the stage of proving that he has been adversely affected by what has taken place. In my opinion, the pursuers are correct in their submission that, in order to succeed, the defender must aver and prove (firstly) that any acting or refraining from acting upon which he founds must be specifically referable to the lease as varied, and (secondly) that the specific acting or refraining from acting in reliance on the lease as varied was with the knowledge and acquiescence of the pursuers.

[39]      The defender's averments dealing with these matters are to be found in Answer 9 at pages 14 - 15. The defender there avers:

"The defender acted in reliance of [sic] the varied lease. The pursuers were aware or ought to reasonably have known that the defender was relying on the terms of the lease Furthermore the pursuers' acquiescence to the varied lease is demonstrated by their acceptance of the defender's payments to rent, service charges and in particular apportioned insurance premiums........ The pursuers continued to accept rent on a monthly basis."

[40]      It is accepted that the original written lease requires the tenant to make payments of rent, service charge and insurance premiums. I therefore fail to see how it could be said that the payment by the defender of these sums from time to time points to the payments being made under some new informal variant of that lease. In my opinion, these payments are equally consistent with the operation of the original written lease. As observed by Lord Hamilton in the Tom Super case, actings sufficient for section 1(3) and (4) to apply must be clearly referable to the terms of the contract as varied. Acts equally consistent with a contract prior to variation are therefore not sufficient.

[41]      In the course of the defender's submissions, reference was made to the payment of rent and other charges on a monthly basis, which it was said was a departure from the terms of the lease and showed the pursuers having altered their position in that regard. However, as the pursuers point out, that is contradicted by the defender's own position on Record. The defender's averment in Answer 3 is that "...The pursuers originally agreed to accept payment on a monthly basis for the limited period of 6 months commencing 28 November 2002. This agreement continued past April 2003...." In my opinion this averment does not assist the defender because the agreement to accept rent on a monthly basis rather than Quarterly is said to have taken place since 2002 - some 4 1/2 years before the date of the purported variation which is the subject of this action. Clearly, that which predates any variation cannot be referable to it. It cannot in any sense be an acting or refraining from acting on reliance of the later occurrence.. The pursuers' submissions are therefore to be preferred.

[42]      The other limb of the section 1(3) and (4) exception is that the acting or refraining from acting must have occurred with the knowledge and concurrence of the pursuers. The defender's position on Record is set out in the same passage of the Record quoted in paragraph 41 above. There is a bald averment that the pursuers were aware or ought reasonably to have known that the defender was relying on the (presumably) varied lease. Acquiescence is said to be again demonstrated by the pursuers' acceptance of the payments referred to. However, as noted above, by accepting rent and other payments due under the original lease, I do not see how that can be sufficient to instruct acquiescence in some variant of it. As pointed out by Lord Bracadale in the passage from Mitchell v Caversham Leisure quoted above, it would not be enough in any event that the defender knew that the pursuers were arranging their affairs in reliance on the fact there had been a variation. The defender must point to specific actings, or examples of refraining from acting, which must be known to and acquiesced in by the other party. I am of the view that the defender's averments fall far short of this, and are irrelevant.

[43]      For those reasons the pursuers' submissions are to be preferred. Even if the defender's averments were all proved, the want of averments sufficient to bring him under the relief afforded by section 1(3) and (4) mean that his case must necessarily fail in so far as it relates to variation of the written lease.

[44]      The pursuers are accordingly entitled to decree of declarator as first craved. I shall sustain the pursuers' first, sixth, seventh and eighth pleas in law, and repel the defender's first, second and fourth pleas in law. Craves 2 to 16 are craves for payment of various sums. Craves 6 to 16 were defended only on the basis that the lease had been varied and brought to an end by the defender. It was agreed that these craves would stand or fall depending solely on whether the lease was found to have ended in the circumstances advanced by the defender. It follows from my decision that the pursuers are entitled to decree for payment in terms of craves 6 to 16. However the sums sued for in craves 2 to 5 inclusive are disputed, and it was recognised that there would require to be a Proof. The cause will therefore now be sent to Proof Before Answer in respect of these matters, and I shall put the case out for a procedural hearing to assign a diet.

[45]      Both parties submitted that expenses should follow success. Although the outcome of the debate is that a proof before answer is to take place, I consider that the debate was necessary to dispose of the major issue in the case. The scope of proof will be considerably narrowed as a result of my decision. Given the substantial success of the pursuers, I will award the expenses of the debate in their favour.

 

 

 

PETER. G. L. HAMMOND

Sheriff

 

sitting as

Sheriff of South Strathclyde, Dumfries and Galloway