Scottish Sheriff Court Decisions

HAMILTON SHERIFF COURT
Sheriff Principal B A Lockhart	A498/11   JUDGMENT OF SHERIFF PRINCIPAL B A LOCKHART   In causa   Alex Murray Pursuer and Respondent   Against   Competence Matters Limited Defenders and Appellants

 

Act: Mr K McGuire, Advocate

 

Alt: Mr R McKenzie, Solicitor, Glasgow

_____________________________________________________________________________

HAMILTON: 29 OCTOBER 2013

The Sheriff Principal, having resumed consideration of the cause, refuses the appeal and adheres to the sheriffs interlocutor of 27 June 2013 complained of; allows the cross-appeal and amends the sheriffs interlocutor by adding after the words "twenty five thousand five hundred pounds (£25,500) sterling" the words "with interest at the rate of 8% per annum from the date of citation until paid"; finds the defenders and appellants liable to the pursuer and respondent in the expenses of the appeal and the cross-appeal; allows an account thereof to be given in and remit same when lodged to the auditor of court to tax and to report; refuses to certify the cause as suitable for the employment of counsel.

 

NOTE:

[1] On 27 June 2013, after proof, the sheriff granted decree against the defenders for payment to the pursuer of the sum of £25,500 with expenses as taxed. The sheriff, inter alia made the following findings in fact:-

"4. The business of the defender is to assess candidates for nationally recognised qualifications in a broad range of disciplines in the construction industry. The defender employs a team of assessors who visit candidates on site and assess their skills against national standards.

5. Between 8 August 2005 and 26 August 2011, when he retired, the pursuer was employed by the defender as an assessor. On commencement of his employment the pursuer and defender entered into a contract of employment. Production 5.1.1 is the contract. It contains the following provision:

"Your rate of pay will be £35,000 per annum.

This is payable in 12 equal monthly instalments by credit transfer (BACS) on the last Friday of every calendar month. A bonus scheme will operate; £100 will be paid per candidate achievement of the whole award paid in six monthly blocks"

6. Under this provision the pursuer was entitled to payment by the defender of a bonus of £100 for each candidate he assessed who successfully completed their qualification (completed candidates). During his employment with the defender, the pursuer received no payments under this bonus scheme. In July 2008, the pursuer met with David Hanley, director of the defender company, and requested a salary increase and that the terms of his contract with regard to the bonus of £100 for each completed candidate be invoked. The pursuer had not received an increase in salary since commencing employment with the defender.

7. On 29 July 2008 the Alex Young, director, wrote to the pursuer (5/1/4/1) confirming that the pursuer sought to have the terms of his contract invoked regarding candidate completion bonuses and offering payment of the bonuses due. The defender offered to make payment of outstanding bonuses to the pursuer on the basis of £2,800 for 28 candidates completed in 2006, £4,900 for 49 candidates completed in 2007, and £2,600 for 26 candidates completed to 30 June 2008, payments to be made in three monthly instalments commencing on 29 August 2008. In the offer, the defender sought to reduce the total sum due to the pursuer by setting off against the sum outstanding, £2,500 of non-contractual bonus payments made to the pursuer.

8. The pursuer rejected the defender's offer by letter of 18 August 2008 (5/1/4/1), disputing the number of completed candidates in the defenders offer and the defenders decision to offset £2,500 of non-contractual bonus payments against the sum outstanding for candidate completion bonuses. The pursuer's letter suggested further discussions in order to reach an amicable agreement. The pursuer received no response to this letter.

9. In November 2008 the pursuer had discussion with David Hanley and Alex Young, directors, and requested a rise in salary. The pursuer was offered a post of operations manager. He did not accept the post.

10. On 25 November 2008 the defender wrote to the pursuer advising that the pursuer's salary was increased to £40,000 per year with effect from 3 November 2008. (5/2/4) This letter was signed by Alex Young, director.

11. During the course of his employment with the defender, the pursuer completed 255 successful candidate assessments."

 

[2] The sheriff then found in law that the pursuer was entitled to payment by the defenders of £25,500 under the terms of the contractual bonus scheme.

 

[3] The sheriff explained her decision in the Decision section of her Note as follows:-

"31. There was no dispute in this case that the pursuer and defender entered into a contract of employment which entitled the pursuer in addition to his salary to bonus payments of £100 per successful candidate he assessed and that no payments were made to him in respect of this contractual entitlement during the course of his three years employment with the defender. It was also not in dispute that the defender acknowledged the outstanding sums due to the pursuer under this bonus scheme in Mr Hanley's letter of 29 July 2008 (5/2/3) to the pursuer and offered to make payment subject to deduction of £2,500 of other bonus payments made to the pursuer in 2007 and 2008. I have no difficulty in concluding from the evidence that the bonus payments totalling £2,500 were discretionary and were not paid or intended to be paid by the defender in satisfaction of the pursuer's contractual bonus entitlement.

32. The issue in contention between the parties was whether in November 2008 the pursuer agreed at a meeting with Mr Hanley and Mr Young to retrospectively and prospectively forego his entitlement to contractual bonus payments in return for a salary increase from 3 November 2008 of £5,000 per annum. This is an issue of credibility. I found the pursuer a convincing and credible witness in his account of events, including his reasons for not raising the matter of his bonus payments during the first three years of his employment. I did not find Mr Hanley a credible witness on a number of matters. His accounts of his knowledge of the bonus provision in the pursuer's contract varied in evidence from being unaware of it until the pursuer raised it in 2008, to having forgotten about it and then to it coinciding with his recollection. This was not consistent with his ability to recount that no other assessor employed by the company in Scotland or England since its inception, other than one individual who remained with the company for only a few months, had such a bonus provision in their contract.

33. Once the pursuer raised the matter of his contractual bonus payments, the issue was dealt with formally by the defenders. The terms of an offer to make payment and the basis of the offer, detailing the number of candidates completed by the pursuer between August 2005 and June 2008, computation of the sums outstanding and offset of the discretionary bonuses paid are all set out in Mr Hanley's letter to the pursuer's rejection of the offer and the basis of his rejection are also set out in his response of 18 August 2008 with a request for further discussions. (5/1/4/1) From Mr Hanley's evidence, this dispute was apparently resolved at a meeting between the pursuer and both directors sometime in November 2008 with no written formalities at all. Mr Young's letter to the pursuer of 23 November 2008 states:

"Dear Alex,

I am pleased to inform you that with effect from 3/11/2008 your salary has been increased to £40,000 per year.

Yours sincerely, Alex Young."

34. There is no reference to the meeting at which Mr Hanley claimed the agreement took place or to the material terms of the agreement, or the foregoing of the contractual bonus entitlement in return for a salary increase. I did not find it remotely credible that the defender would resolve a contractual dispute dealt with scrupulously and formally by the directors in July in such an unclear manner in November. I am satisfied on the balance of probabilities that the pursuer did not enter into any agreement with the defender to forgo his contractual bonus entitlement. I consider it likely that the directors hoped by granting the pursuers request for a salary increase that the dispute would go away and if not that they could claim it was resolved in this manner.

35. I found the pursuer's evidence as to the candidates for whom he completed assessments credible. He had approached this in an entirely open manner in formally requesting access to the defender's computer system through his solicitors. I did not find any substance in Mr Hanley's criticism of this evidence and the defenders had made no effort, despite the resources available from its own records, to provide evidence to contradict the pursuer.

 

[4] The appellant lodged a Note of Appeal in the following terms:

"The defenders respectfully submit that the sheriff was in error in granting decree in the sum of £25,500 together with expenses against the defenders in favour of the pursuer. It is submitted that the case should have been dismissed as craved in the defenders second preliminary plea. In particular -

1.          The sheriff erred in exercising her discretion in ruling that the application of OCR9.7 was in the interest of justice. The sheriff failed to give proper weight to the pursuer's candid admission in condescendence 3 of the record in his failure to deny the defenders averment that "the defenders offered to vary the pursuer's contract by removing the candidate achievement bonus clause and offering the pursuer (1) an increase in salary of £5,000 per annum (2) a bonus of £2,500. The pursuer accepted the defenders offer and his contract was varied accordingly. No further sums are due by the defenders to the pursuer" (see page 2 of the record. Answer 3). It is submitted that the pursuer's failure to deny the said averment was more than an oversight and that the sheriff erred in this applying OCR 9.7. Further it is submitted that the sheriff erred in law in exercising her discretion to repel the defenders objection to the line of questioning in variation by the pursuer's agent.

2.          Further it is submitted that the sheriff was in error in allowing the pursuer's agent. to renew his motion to amend by inserting a general denial on condescendence 3 (see paragraph 30 of the judgement). The said motion had already been refused at the commencement of day 1 of the proof (see paragraph 29 of the judgement). It is submitted that it is not competent for the sheriff to allow the said motion to be renewed and thereafter to be granted. In any event it is submitted that the sheriff was in error in granting the said motion, the sheriff having failed to take into account the submissions of the defender's agents concerning the unfairness and prejudice to the defenders in the said motion being allowed. Esto the sheriff did not err in law in allowing the said motion to be made, the sheriff erred in law in allowing the amendment. It is submitted the sheriff wrongly exercised her discretion in allowing the amendment to be made. Further, the sheriff erred in law in failing to exercise her discretion to consider if the amendment should be allowed subject to conditions. In particular the sheriff failed to consider whether or not allowing the amendment should have consequences with regard to the expenses occasioned by the amendment. The amendment fundamentally altered the position of the pursuer on Record. If the amendment had not been allowed the pursuer's action would have failed (as there would have been no basis on Record for his pleas in law to be sustained). In such circumstances it is submitted that it was wholly unreasonable for the sheriff to award expenses as taxed to the pursuer.

3.          Further it is submitted that the learned sheriff erred in failing to give proper weight to the defender's submission that the pursuer had failed to establish which of the candidates he claimed to complete were completed. It is submitted that the sheriff failed to give proper weight to the defender's submission that the pursuer had failed to establish which if any candidates had been completed and as a result the pursuer had failed to establish quantum."

 

[5] There was a cross appeal intimated on behalf of the pursuer and respondent in effect that the pursuer had sought interest on the sum awarded at the judicial rate (8% per annum) from the date of citation until paid. It was said the sheriff erred in failing to deal in any way with the crave for interest in her judgement. I was asked to allow the cross appeal but only to the extent of varying the sheriff's interlocutor of 27 June 2013 to the extent of inserting after the word "sterling" the words "together with interest thereon at the rate of 8% per annum from the date of citation of the action until payment by the defender to the pursuer".

 

[6] I propose to deal with this appeal under three separate heads;

a) The effect of the pursuer's failure to deny the defenders averment regarding an alleged variation of the contract.

b) The sheriff's granting of the renewed motion on behalf of the pursuer to insert a general denial of the defenders averments in condescendence 3.

c) Quantum

d) The cross appeal which the pursuer seeks interest on the sum discerned for.

In respect of each ground of appeal I shall set out the submissions of parties and then give my decision thereon.

 

 

 

A.     The effect of the pursuer's failure to deny the defenders averment regarding an alleged variation of the contract.

 

SUBMISSIONS FOR THE DEFENDERS AND APPELLANTS

 

[7] I was referred to answer 3 of the Record which was in the following terms:

"Admitted the pursuer's contract contained a bonus scheme. Admitted the pursuer was to be paid £100 per candidate achieved. The terms of the said clause are admitted. Quoad ultra denied. Explained and averred that in or around November 2008 the pursuer met with the defenders to discuss his contract. The pursuer appeared concerned that he was not being paid the correct candidate achievement bonus. The defenders offered to vary the pursuer's contract by removing the candidate achievement bonus clause and offering the pursuer (1) an increase in salary of £5,000 per annum and (2) a bonus of £2,500. The pursuer accepted the defenders offer and his contract was varied accordingly. No further sums are due by the defenders to the pursuer."

 

The pursuer had made no response to this averment on record. Condescendence 3 was in the following terms;

"In addition to the agreement of an annual salary the defenders offered the pursuer a bonus scheme as set out on page 1 of the contract of employment under the heading "Pay" in the contract of employment. The pursuer was to be paid £100 per candidate achievement. The clause provided in the contract of employment states "A bonus scheme will operate; £100 will be paid per candidate achievement of the whole award paid in 6 monthly blocks". To date the pursuer has received no such payment since the commencement of his employment."

 

[8] It was submitted the sheriff had erred in law in failing to sustain a timeous objection by the defenders' agent on a line of questioning by the pursuer's agent (in examination at chief of the purser) as to whether or not the pursuer had agreed to a variation of his contract of employment as set out in the defenders answer 3 of Record. The objection for the defenders was that there was no Record by the pursuer for this line of questioning. The sheriff repelled the objection on the basis that there was adequate Record taking the pleadings as a whole for this line of questioning to be put.

 

[9] It was conceded that this was a discretionary decision by the sheriff, but it was said that she had erred in exercising her discretion to repel the objection because she did so expressly and solely on the basis that taking the pleadings as a whole there was adequate Record for the disputed line of questioning. It was submitted that this was plainly and irrefutably wrong. An examination of the Record showed there was no basis (or at least no reasonable basis) for this line of questioning. The agent for the pursuer asked for the line of questioning to be allowed "subject to relevancy and competency" but this was not the course adopted by the sheriff who allowed the questioning without reservation. It was said the sheriff had erred in law. The pursuer's agent had made a motion to amend the pleadings, include a general denial of the averments made in answer 3 at the commencement of day 1 of the proof but this had been refused by the sheriff. There was simply no basis (or no reasonable basis) on which the sheriff could reach the conclusion that there was adequate Record to allow the line of questioning to continue.

 

[10] I was referred to para 9.7 of the Ordinary Cause Rules which provides:-

"Implied admissions

9.7 Every statement of fact made by a party shall be answered by every other party, and if such a statement by one party within the knowledge of another party is not denied by that other party, that other party shall be deemed to have admitted that statement of fact."

It was submitted that it was clear from the Record that the pursuer had failed to answer a statement of fact in the defenders answer 3 as to the alleged variation of the pursuer's contract of employment. In these circumstances the pursuer was deemed to have admitted that fact. i.e. that his contract of employment was varied as averred by the defenders.

 

[11] Summary Cause Rule 2.1 allows a sheriff to relieve a party from the consequences of failure to comply with the provision in these rules which is shown to be due to mistake, oversight or other reasonable cause, on such conditions as he thinks fit. The sheriff in this case decided to relieve the pursuer from the consequences of OCR 9.7 because, in her view, the lack of a formal denial was a matter of "oversight".

 

[12] It was explained that the reasons given by the sheriff for exercising her discretion under OCR 2.1 was that it was apparent from the pre litigation correspondence, the whole of pleadings on Record and the evidence led that the issue in contention between the parties was whether or not the pursuer's contract of employment had been varied. However, the pleadings on Record did not show a denial of the defenders answer 3 and there was no indication elsewhere in the pleadings that such a denial was made. It was submitted it was wholly unreasonable for the sheriff to rely on the "evidence led" to justify her exercise of discretion because she had erred in law in allowing evidence on the variation point to be led by the pursuer. It was accepted that the pre litigation correspondence touched on the variation point, but that was all the more reason why it was wholly unreasonable for the sheriff to categorise the failure by the pursuer to answer the defenders answer 3 as a matter of oversight. Formal denial to the defenders answer 3, it was submitted, was probably the most important part of the pleadings from the pursuer's perspective (given the matters which were not in dispute between the parties) and it was wholly unreasonable for a failure to make such a denial to be categorised as an oversight.

 

SUBMISSIONS FOR THE PURSUER AND RESPONDENT

 

[13]Solicitor for the pursuer and respondent replied to these submissions as follows:-

A There was no implied admission by the pursuer by operation of OCR 9.7, to the defenders' averment in answer 3 that there had been an agreed variation of the contract of employment between the parties in November 2008. Taking the pursuer's pleadings as a whole, it was plain that he avers that he was entitled to payment of £100 per completed candidate (as defined below) throughout the period of his employment by the defenders.

B In any event, the matter of an implied admission and the effect that such an implied admission has on the allegedly admitting party's case is a matter of relevancy. A proof was allowed and the pursuer's preliminary plea was repelled. There were accordingly no relevancy issues to be raised at proof and parties were entitled during the proof to lead evidence in support of their own case and in response to the other party's case. It was submitted that in this case, if the defenders had intended to pursue a line that the pursuer's action for payment under the contract was bound to fail as the pursuer had failed to deny a variation of the contract, that was a matter of relevancy and should have been raised in a Rule 22 Note and either debated or a proof before answer assigned. However this plea was not taken by the defenders. They allowed the case to go to a proof. All issues of relevancy were accordingly deemed to have been departed from. It was submitted that the pursuer's proper course if he wished to found upon the admission as establishing liability, would have been to challenge the defences as irrelevant.

C By failing to reserve the issue of relevancy for disposal either to debate or proof before answer, the defenders were personally barred at proof from seeking to argue that the pursuer had impliedly admitted the variation of contract averred by the defenders in answer 3.

D With respect to ground of appeal 1 in the defenders' amended note of appeal, the Sheriff did not exercise any discretion in the application of OCR9.7. The discretion exercised by the Sheriff was in the application of OCR2.1.(1).

E There was no objection, or at least no timeous objection taken, on behalf of the defenders to any line of questioning by the pursuer's agent designed to elicit evidence that there had been no variation of contract in November 2008.

F The Sheriff was entitled in the circumstances to repel the objection made at the time that it was made.

At the appeal hearing before me the solicitor for the defenders relied again on these submissions and emphasised that the pleadings should be considered as a whole. There was nothing in the Summary Cause Rules which provided that a denial need to be pled in any specific way. The denial did not require to be explicit. The purpose of pleadings is to give fair notice to the other party of the case which is intended to be advanced at proof. In this case a plain reading of the pleadings as a whole could only lead to the conclusion that the pursuer did not admit that there was a variation on the contract agreed in November 2008. The pursuer's case, put simply was that he had completed successful work with 260 candidates. He was entitled to a bonus of £100 per candidate for the 260 names he had set out. He claimed he was entitled to £26,000. Against that the defenders position was that the pursuer had accepted an offer to vary the contract as averred.

 

[14] It was submitted that the purpose of Rule 9.7 was to set up a relevancy issue. If the effect of any admission inferred from a failure to deny meant that the pursuer had no case, the defender should take the pursuer to debate as the implied admission, if accepted as such, would mean there was no relevant case. In this case a Rule 22 Note had not been lodged and the plea to the relevancy the instance of the defenders had been repelled by agreement. The fact that a proof had been allowed meant there were two consequences (1) all questions of relevancy fell away (2) it was perfectly permissible for the pursuer to plead at a proof such evidence as he wished to establish his case and to counter the defenders case. There could be no question at that stage of any implied admission.

 

DECISION ON THE GROUND OF APPEAL A

 

[15] Condescendence 3 and 4 are in the following terms:-

"3. In addition to the agreement of an annual salary the defenders offered the pursuer a bonus as set out in page 1 of the Contract of Employment under the heading "Pay" in the Contract of Employment. The pursuer was to be paid £100 per candidate achievement. The clause provided in the Contract of Employment states "A bonus scheme will operate; £100 will be paid per candidate achievement of the whole award paid in 6 monthly blocks". Today the pursuer has received no such payment since the commencement of his employment.

4 "The pursuer has now calculated that he has completed 260 candidate achievements as per the schedule annexed hereto which is produced in process and founded upon. The pursuer has now invited the defenders to make payment in respect of the completed candidate achievement scheme but they refuse and/or delay to do so and accordingly this action is necessary."

The pursuer's position could not be clearer. In terms of the bonus scheme he should be paid £100 per candidate achievement. He completed 260 candidate achievements. He has not been paid for them and has raised this action to recover the sum he alleges is due, namely £26,000.

 

[16] The defenders response is in answer 3 :-

"Admitted that the pursuer's contract contained a bonus scheme. Admitted the pursuer was to be paid £100 per candidate achieved. The terms of the said clause are admitted. Quoad Ultra denied. Explained and averred that in or around November 2008 the pursuer met with the defenders to discuss his contract. The pursuer appeared concerned that he has not been paid the correct candidate achievement bonus. The defenders offered to vary the pursuer's contract by removing the candidate achievement bonus clause and offering the pursuer (1) an increase of salary of £5000 and (2) a bonus of £2,500. The pursuer accepted the defenders offer and his contract was varied accordingly. No further sums are due by the defenders to the pursuer."

 

In my opinion it is clear from an examination of the pleadings that the issue in contention between the parties was whether the contract was varied. The pursuer unequivocally states that in terms of the bonus scheme he was entitled to be paid £100 per candidate achievement and he had completed 260 candidate achievements. He sues for £26,000. If the pursuer had accepted the defenders variation of the contract, he would not be suing for £26,000. The sheriff states that she took into account pre litigation correspondence, the whole pleadings on record and the evidence deciding whether or not the pursuer's contract had been varied. However, as far as this ground of appeal is concerned the issue is whether a general denial is necessary to prevent the pursuer being deemed to have admitted the variation alleged by the defenders. In my opinion it is not necessary. The issue between the parties, from the pleadings alone, is whether the contract was varied as alleged by the defenders. The pursuer is suing the defenders for £26,000, being 260 bonus payments of £100. He would not be suing for £26,000 if he accepted that his contract was varied as averred by the defenders. The allowance of a proof means that both parties may lead evidence as to which version of the factual position is to be preferred.

[17] That is sufficient to dispose of this ground of appeal. However, I would comment that I also accept the further submission which was made on behalf of the defenders. The purpose of Rule 9.7 is to set up a relevancy issue. If the effect of an admission as a result of a failure to deny is that the pursuer has no case, the pursuer should make a plea to the relevancy, and submit a Rule 22 Note. The matter would then go to debate, where, if the pursuer's submission is well founded, the action would be dismissed. Alternatively he may wish to reserve his plea to the relevancy and having a proof before answer.

 

[18] In this case there is no plea to the relevancy. There is no Rule 22 Note. A debate was not fixed and a plea to the relevancy was repelled. In these circumstances the defenders have forfeited their right to object to any evidence led by the pursuer about the terms of the contract as averred by himself and the defenders.

 

[19] However, as I have already said, this ground of appeal fails as I do not consider the pleadings are capable of the construction that the pursuer has admitted the variation averred by the defenders.

 

B.      Whether the sheriff was in error in allowing the pursuer's agent to renew his motion to amend by inserting a general denial.

 

SUBMISSIONS FOR THE DEFENDERS AND APPELLANTS

 

[20] It was submitted that the sheriff further erred in law in allowing the pursuer's agent to renew his motion to amend the pleadings by inserting a general denial in condescendence 3. The pursuer had made an identical motion at the commencement of day 1 of the proof which had been refused. In such circumstances it was not competent, or alternatively it was a wrongful exercise of the sheriff's discretion to allow that motion to be made again towards the conclusion of the proof.

 

[21] Esto the sheriff did not err in law in allowing the motion to be made, the sheriff erred in law in allowing the amendment. This was an exercise of judicial discretion. The defenders' agent represented to the sheriff that the motion to amend should be refused on the grounds that it was being made after the evidence had been led and, importantly after the parties had made their submissions. It was submitted that the defenders would be unduly prejudiced because the proposed amendment would fundamentally change the position of the pursuer's on Record. It was also relevant that the sheriff had previously refused an identical motion. It was said the sheriff erred in law in finding that the pursuer's agent did not represent to her there would be any unfairness or prejudice to the defender resulting from the amendment being allowed. It was said that the defenders' agent clearly represented to the sheriff that there would be both unfairness and prejudice to the defenders in the amendment being allowed.

 

SUBMISSIONS FOR THE DEFENDERS AND RESPONDENTS

 

[22] It was submitted that the motion to amend made prior to the commencement of the proof was refused by the Sheriff in hoc statu. As such it was open to the Sheriff to reconsider the same motion at a later stage. There were no substantive submissions made by the defenders' agent with respect to unfairness and prejudice to the defenders in the motion to amend being allowed or in respect of the time that it was allowed. In any event, all parties having had an opportunity to lodge all documents which they wish to lodge and to lead all oral evidence which they wish to lead with respect to the matter of the alleged variation of contract and having regard to the pre-litigation correspondence, no unfairness or prejudice was occasioned to the defenders by the motion to amend being allowed at the stage at which it was allowed.

 

[23] I Having regard to the terms of OCR 18.2.(1) and (2), it was appropriate that the Sheriff allowed the amendment sought and there was no erroneous exercise of the Sheriff's discretion in so allowing the amendment. No substantive prejudice had been identified to the Sheriff by the agent for the defenders and in any event, even if such prejudice had been identified, it was in the circumstances appropriate for the Sheriff in exercising her discretion to allow the amendment.

 

 

DECISION ON THE GROUND OF APPEAL B

 

[24] In view of the decision in which I have made on ground of appeal A, this point is of no consequence. However, I have to comment that, at the discretion of the sheriff, amendment may be allowed at any time before final judgement. Rule 18.2 of the Ordinary Court Rules provides;

"the sheriff may, at any time before final judgement, allow amendment of the initial writ which may be necessary for the purpose of determining the real question in controversy between the parties..."

 

Esto it was necessary to do so, I would have accepted the submission made on behalf of the defenders that no substantial prejudice had been identified in respect of the allowance of the amendment. It is my opinion that any person reading the closed Record in its current form would appreciate that the issuer between the parties is whether the defenders are correct in their assertion that the pursuer accepted the defenders offer to vary the contract. It is clear from the pursuer's pleadings that he did not accept the offer. He would not have been continuing with his case on the basis of the pleadings if he had accepted he had done so. While I consider a general denial is not necessary, there is certainly no prejudice by allowing it being inserted by amendment at the conclusion of the evidence.

 

C.      Quantum

SUBMISSIONS FOR THE DEFENDERS AND APPELLANTS

 

[25] It was submitted that the sheriff erred in law in finding the pursuer had satisfactorily established the quantum of his loss to the required standard. I was referred to the submissions made on behalf of the defenders at the proof which are recorded in the Sheriff's Note as follows:-

"25 The pursuer sought to rely on his unverified and contradictory schedule of completed candidates (5/2/1) and the bundles of documents in the folders (5/1/2 and 5/1/3) to establish the sum he seeks. None of these documents were incorporated brevitatis causa in the proceedings and the pursuer must therefore lead the court through them to establish what they are. Mr McElroy referred to MacPhail at paragraph 9.67 regarding reference to and incorporation of document on record. The documents in the binders (5/1/2 and 5/1/3) made no reference to the pursuer and they were not mentioned in the pleadings at all. When pressed the pursuer confirmed that other documents with his name on them would have been available and the best evidence was not therefore before the court.

26. To succeed, the pursuer must establish which candidates were completed. It was submitted he failed to do so having offered no evidence regarding the schedule itself (5/2/1/), the bundles of completion sheets (5/1/2 and 5/1/3) and did not bring any witnesses to give evidence they were completed candidates. The pursuer's evidence was therefore unreliable on this matter. In examination-in-chief the pursuer said he had limited access to the defenders' data base and also in examination-in chief that he compiled the schedule from memory.

27. The onus of providing the sum sued for lay with the pursuer and there was no evidence of the qualification of his claim. In his evidence he said he was not sure if the folders (5/1/2/ and 5/1/3) contained all the completion sheets. This was an all or nothing case; he was either entitled to the sum sued for or nothing at all."

 

It was submitted there was no proper reasonable basis upon which the sheriff could make the findings on quantum that she made. It was accepted that the sheriff had found the pursuer credible and reliable. However a finding of credibility was not sufficient when considering bonus payments which should be tied to successful candidates. It was submitted that the documentation relied on by the pursuer to establish that those named in production 5.2.1 had been successful candidates with whom the pursuer had been involved. Productions 5.1.2. and 5.1.3 set out details of the successful candidates, but there was no mention of the pursuers name anywhere in these documents to the effect that he had been involved with them. There was no statement in these documents of the name of the relevant assessor.

 

[26] Production 5.2.1. was a schedule of completed candidates which was made by the pursuer for the purposes of the proof. The pursuer had been given access to the defenders' records. This list had been made up by the pursuer from records, his memory and his diaries. It was submitted that this was not sufficient. The position of the defenders was that they put the pursuer to proof on this aspect of his case. He had failed to establish it.

 

SUBMISSIONS FOR THE PURSUER AND RESPONDENT

 

[27 It was submitted that the sheriff dealt with the quantum in the quote of the contractual entitlement of the pursuer in a succinct way at para 35 of her Note where she stated:-

"I found the pursuer credible as to the candidates for whom he completed assessments. He approached this in an entirely open manner in formally requesting access to the defenders computer system through his solicitors. I did not find any substance in Mr Hanley's criticism of this evidence and the defender had made no effort, despite the resources available from their own records, to provide evidence to contradict the pursuer."

 

Solicitor for the defenders referred to the shorthand notes and in particular the evidence in chief of the pursuer and the cross examination of Mr Hanley for the defenders. A great deal of time had been spent at the proof explaining to the sheriff how the quantum of the pursuer's contractual right to payment had been established. I was referred to pages 1-20 of the pursuer's evidence in chief. The pursuer had explained how he received from the defenders records, the material in productions 5.1.2 and 5.1.3 which contained details of the successful candidates. He identified from his own memory of the individuals and from his diaries 260 candidates with whom he had been involved. The pursuer's evidence was not challenged on behalf of the defenders at proof except in consideration to five occasions where there were duplicated names. It was agreed that the number should be 255 and not 260. Other than that challenge, there was no evidence elicited in cross examination on behalf of the defender or by evidence led from the defenders regarding the correctness of the pursuer's evidence that he was entitled to a bonus in respect of these persons. I was referred to the case of O'Donnell v Murdoch McKenzie and Co. 1967 SC (HL) 63 where it was observed that, no evidence had been led by the defenders, the inferences to be drawn from the evidence led by the pursuer should be those most favourable to him. In this case no evidence had been led by the defenders in response to the pursuer's evidence regarding the persons with whom he had been involved. In that situation, it was submitted that the court was entitled to draw the inference from the pursuer's evidence most favourable to him.

 

[28] The thrust of the pursuer's evidence in chief was that his task was to work with candidates employed by other companies to achieve their NVQ (National Vocational Qualification). The State paid the defenders a certain sum in respect of each candidate who obtained the qualification through their offices. There had to be a qualification in respect of an individual before the defenders were paid. The pursuer was employed by the defenders to tutor the candidates so that they obtained the qualification. The defenders would be paid a certain sum in respect of each candidate by the State and the pursuer would be paid a bonus of £100 for each successful candidate.

 

[29] There had been evidence from the pursuer that he was able to log in to the defenders' computer system from his house. He asked to be allowed to carry out a computation of his claim by access to the defenders' records at or about the end of his employment period. This was permitted. It transpired that some of the records during the period in which the pursuer was involved had been archived, but the preponderance of the records were available on the defenders' computer system. The pursuer printed off from a much larger document the front page details in respect of each candidate who was awarded the qualification and in respect of whom the pursuer recalled he had been involved. These documents were in 5.1.2. and 5.1.3 of process. The pursuer's evidence was he was the person responsible for taking all of the candidates listed in 5.2.1 through the course to secure their qualification. His evidence was that he knew the candidates he had acted for. The list of 260 candidates in 5.2.1 of process were all candidates with whom he had been involved. He was able to consult his own diaries and records to compile 5.2.1 of process which contained the 260 names. It was accepted that 5 fell to be deleted as there had been 5 duplications.

 

[30] The other piece of evidence before the sheriff was 5.2.3 of process, which was a letter from Alex Young, a director of the defenders dated 29 July 2008. I was advised that Alex Young had been present in the court during the first day of the proof but had been released and not called by the defenders to give evidence at the continued diet of proof. Alex Young was the other director of the company said to have been present when the discussion took place about the alleged variation of the contract in November 2008. The sheriff had ultimately preferred the evidence of the pursuer to that of Mr Hanley regarding the variation (in the absence of Mr Young). It was pointed out that the defenders had available all the persons who had been present when the alleged variation was made but chose not to call Mr Young. In his letter of 29 July 2008 (5.2.3 of process) Mr Young stated;

"We have reviewed the data regarding the candidate completions since your start date with the company. Having factored in the bonus payments already received by yourself to date the following amounts are due to you.

2006 - 28 candidates completed - £2,800 -£2,500 bonus payment = £300

2007 - 49 candidates completed - £4,900

2008 - 26 candidates completed - (230/06/2008) £2,600

The remaining completions for 2008 will be paid in January 2009 once the numbers have been confirmed.

These payments will be made in 3 monthly instalments commencing 29 August and will be included in your salary...."

It was submitted that this letter demonstrated that as at 29 July 2008, the defenders accepted from review of their records that there had been 103 candidates involving the pursuer. It was also accepted at proof by Mr Hanley that the £2,500 bonus payment should not have been deducted in that computation.

 

[31] Accordingly the evidence regarding quantum before the sheriff was:-

1. The front sheets relating to the candidates of which the pursuer gave oral evidence that he had obtained them from the defenders' computer system with their agreement - 5.1.2 and 5.1.3 of process.

2. The pursuer's oral evidence that these were candidates with which he had been involved. This was from his own knowledge and his diaries.

3. The balance of 260 candidates (excluding those in archive) was drawn up from his knowledge of persons with whom he had done the training. He accepted that there had been a duplication in respect of 5 candidates.

4. The admission in the letter by the director Alex Young dated 29 July 2008 (5.2.3 of process) regarding the 103 candidates completed in 2006, 2007 and 2008 to 30 June 2008. There according was no issue about 103 candidates up to 30 June 2008.

 

[32] Against that the defenders evidence was only in respect of 5 disputed candidates which was accepted. At court the defenders director, Mr Hanley accepted that they had done no checking after 30 June 2008. It was submitted ample notice had been given to the defenders of the sums claimed by the pursuer. It was open to the defenders to examine their computer system and identify whetherwhat the pursuer was saying was correct. It was clear that Alex Young had done that up until 30 June 2008. No computation had been made by the defenders thereafter.

 

[33] It was submitted that the finding of the sheriff that the pursuer was a wholly credible and reliable witness, the concession by Mr Hanley that he had always found the pursuer to be reliable and honest in the context of his employment, and the authority of the case of O'Donnell v Murdoch McKenzie supra regarding the inference that should be drawn where the defenders choose not to lead evidence to directly contradict the evidence of the pursuer, entitled the sheriff to come to the conclusion that the pursuer had completed 255 candidates. There was a sufficiency of evidence in the technical sense to allow the sheriff to come to that conclusion. This was a civil case where the standard of proof was on the balance of probabilities. In these circumstances it was submitted that there was ample evidence on which the sheriff could conclude that the pursuer had discharged the onus on him to prove on the balance of probabilities that he had completed 255 candidates for the purpose of being entitled to a contractual bonus of £100 per completed candidate.

DECISION ON GROUND OF APPEAL C

 

[34] I consider the submissions which have been made on behalf of the pursuer in respect of quantum are well founded. In my view there is a sufficiency of evidence to allow the sheriff to take the view that she did in para 35 of her Note. The detailed evidence to which I have referred, together with the inference which I consider can be properly drawn from the failure of the defenders to lead evidence in terms of the case of McDonald v Murdoch McKenzie, support the sheriff's conclusion. This ground of appeal also fails.

 

D.     The Cross Appeal - Rate of Interest

[35] Counsel for the defenders and respondents did not oppose the cross appeal. I accordingly allowed the cross-appeal by awarding interest in the sum of £25,500 at 8% per annum from the date of citation until payment.

 

 

CONCLUSION

 

[36] In the event I consider the three grounds of appeal submitted on behalf of the defenders and appellants fail. The cross- appeal on behalf of the pursuer is not opposed. My interlocutor reflects that position. I have awarded the expenses of the appeal and the cross-appeal to the pursuer. Although parties lodged very substantial written submissions in connection with this case, I consider the appeal did not merit the employment of counsel. I refuse to certify the cause as suitable for the employment of counsel.