Scottish Sheriff Court Decisions

SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW

CA152/12

JUDGMENT

of

SHERIFF PRINCIPAL C A L SCOTT, QC

in the cause

Albacroft Limited

Pursuers

against

Gary Thomson

Defender

Glasgow, 8 April 2014.

The sheriff principal, having resumed consideration of the appeal, Refuses grounds of appeal 1 to 4 and Adheres to the sheriff's interlocutor dated 10 June 2013; Refuses ground of appeal 6; quoad ultra Continues consideration of the appeal in relation to the sheriff's interlocutor dated 27 November 2013 to a date to be hereafter assigned; Reserving, meantime, all questions of expenses.

NOTE:-

[1] The oral submissions in this appeal, on both sides of the bar, were moderately extensive. Therefore, I trust that I do no injustice to each counsel's carefully prepared arguments by endeavouring to some extent to summarise what I understood to be the core propositions advanced during the hearing.

Grounds of Appeal 1 - 4

Defender's submissions

[2] The starting proposition for the defender was that the pursuers had failed to "bring themselves within" the relevant contractual mechanism such as would entitled them to payment of the sum or sums sought. Counsel for the defender submitted that when the contractual terms were properly construed, certification was a condition precedent when it came to the contractors' claim for payment.

[3] Counsel accepted that it did not follow that in every such instance a contractor bereft of a certificate from the architect would be disabled from recovering sums due under the contract. However, what he himself described as his "critical proposition" was that, without certification, there was no entitlement to payment "simply and only" by virtue of the architect failing to issue the certificate timeously and where no impediment existed to it being issued, albeit late.

[4] The "simplistic reasoning" which counsel for the defender characterised as having been put to the sheriff as part of the pursuers' submissions was subjected to criticism. It was, submitted counsel, a gross over-simplification of the law for the pursuers to have asserted that because the parties' contract stipulated that the architect must certify the amount remaining due to the contractor and because the architect had not done so, it was, thereby, a failure to be attributed to the defender.

[5] Counsel for the defender argued that much more was required before a route bypassing the absence of an architect's certificate could be successfully negotiated by the party seeking payment. Something tantamount to certification being frustrated or prevented was necessary. Reference was made to the case of Karl Construction Ltd v Palisade Properties plc 2002 SC 270 and to various passages therein from page 278 onwards.

[6] However, fundamentally, counsel for the defender focused upon paragraphs [23] and [24] where, inter alia, Lord Drummond Young expressed the opinion that it was a general principle of building contract law that, if there were any failure in the certification mechanism, ultimately, the party adversely affected might resort to litigation to have the amount that should have been certified determined. Accordingly, counsel contended that a failure in the certification mechanism had to be identified before a substitute mechanism for determination of the sum due could be resorted to. Paragraph 37-108 in Chitty on Contracts 31^st Edn was also highlighted.

[7] On the basis of the sheriff's findings in fact, counsel for the defender submitted that, once the pursuers had gone off-site, the steam had gone out of the payment process. It was suggested that the only reasonable interpretation of finding in fact 67 (inter alia to the effect that "the pursuers took their time to put together the information required by the quantity surveyor") was that they did not immediately produce the supporting material the contract obliged them to produce.

[8] There had been no request for payment in formal terms at least until 10 February 2012. Throughout 2010, there had been a dialogue which, by September 2010, resulted in the pursuers being entitled to payment in respect of 48 out of 115 items. As counsel for the defender put it, the "disconnect" here was that the certification mechanism required the architect to certify the total sum due. Reference was made to paragraphs 82 and 83 in the sheriff's findings in fact and law. Counsel observed that there had been no discussion of the Karl Construction case before the sheriff.

[9] With regard to paragraph [77] in the sheriff's note, counsel for the defender took no issue with the final sentence. However, he submitted that the sheriff had failed to address what he claimed was the logical consequence of her finding to the effect that the architect's appointment had not been terminated. If that were correct, then the converse applied and there was no good reason why certification by the architect had not been secured.

Pursuers' submissions

[10] In responding to the defender's argument regarding certification being a condition precedent to payment, counsel for the pursuers advanced three central propositions:

(a) As a matter of construction, the issue of certificates under the SBCC Scottish Minor Works Contract January 2004 edition was not a condition precedent to liability for payment.

(b) Esto it was a condition precedent, it was not a strict condition precedent in the sense that the pursuers could not recover in respect of work completed in the absence of an architect's certificate.

(c) Esto it was a strict condition precedent, the defender could not rely upon the absence of any certificate in the present proceedings.

[11] Counsel for the pursuers turned to the sheriff's judgment and, in particular, to finding in fact 11, focusing upon the final sentence. He demonstrated how a number of items (in respect of which claims for payment were made) were not disputed by the defender when it came to liability. In other words, the sheriff had used the same formula as per the final sentence in finding in fact 11 in a number of findings.

[12] Counsel referred to the sheriff's treatment of the history of the contract all as set out from finding in fact 62 onwards. Counsel explained that any failure on the part of the pursuers to expedite progress regarding certification/payment early on was due to the fact that, at that stage, the defender had been in financial difficulties. Counsel for the pursuers argued that they had found themselves in the middle of a dispute arising from the intransigence of the architect and the quantity surveyor. Reference was made to finding in fact 70 and also to finding in fact 80. With regard to the latter, the sheriff held that the defender had signed a discharge of all liabilities (in favour of the architect) on 23 November 2009. Accordingly, counsel for the pursuers maintained that, thereafter, the defender could make no calls upon the architect to do anything given the existence of the discharge. It was submitted that the defender's approach had disabled him from ensuring that the terms of the contract were complied with.

[13] The sheriff's note at page 13 made reference to the defender's original contention that the architect's appointment had been terminated on 23 November 2009. Counsel for the pursuers suggested that any interaction as between the defender and the architect was entirely a matter for them. He contended that many of the submissions put forward by counsel for the defender reflected an inversion of the reality of the situation. It was pointed out that the defender would not, obviously, have been entitled to rely upon his current line of argument had his original contention regarding termination of the architect's appointment been correct.

[14] Under reference to page 18 in the sheriff's note, particularly paragraph [23], counsel for the pursuers highlighted the fact that the first five days of the proof had been taken up with the pursuers being required to prove that the work in question had, in fact, been carried out. The sheriff had expressed her disapproval of such a scenario at paragraph [27]. Moreover, her assessment of the defender's approach to the conduct of the proof was to be found in the following paragraph, [28]. The sheriff's commentary regarding an explanation for the absence of the architect's certificate was to be found within paragraph [62] in her note.

[15] There was, maintained counsel for the pursuers, no requirement for any material to be submitted for the provisions of clause 6.3 in the contract to be given effect. It was submitted that certification for payment of the amount due to the contractor (being 97.5% of the total amount to be paid) automatically followed once practical completion had been certified under clause 3.4.

[16] Turning to proposition (a) supra, counsel for the pursuers argued that there was nothing in the parties' contract to suggest that in the absence of a certificate issued by the architect, there might be no liability to make payment. The court was invited to consider the terms of clause 10C.2 which read as follows:

"When any dispute or difference is to be determined by court proceedings, then insofar as the Conditions provide for the issue of a certificate, or the expression of an opinion or the giving of a decision, requirement or notice such provision shall not prevent the Court, in determining the rights and liabilities of the parties hereto, from making any finding necessary to establish whether such certificate was correctly issued or opinion correctly expressed or decision, requirement or notice correctly given on the facts found by the Court; nor shall such provision prevent the Court establishing what certificate ought to have been issued or what other opinion should have been expressed or what other decision, requirement or notice should have been given as if no certificate, opinion, decision, requirement or notice had been issued, expressed or given."

[17] Counsel submitted that any attempt to exclude common law remedies for payment for work done had to be clearly set out in the contract. Reference was made to James Howden & Company Ltd v Powell Duffryn Steam Co Company Ltd 1912 SC 920 and to Beaufort Developments (N.I.) Ltd v Gilbert-Ash N.I. Ltd [1999] 1 AC 266. At page 931 in the Howden case, the Lord President stated that:

"It is possible to phrase a contract so that the possession of an engineer's certificate should be made a condition precedent to any action whatsoever. All I can say is that that has not been done here."

[18] In the case of Beaufort Developments, counsel for the pursuers selected various passages from the opinion of Lord Hoffmann. Lord Hoffmann had taken the view that it was necessary to make a careful examination of a contract as a whole in order to discover whether upon its true construction it conferred binding power upon the decisions of an architect. (See page 274C-D). Counsel for the pursuers maintained that, as a generality, there was no limitation upon the court's powers to make findings in respect of payments due under a contract absent any specific provision limiting such powers.

[19] The case of Scottish Mutual Assurance plc v Jardine Public Relations Ltd [199] EGCS 43, 1999 WL 477275 was also cited by counsel for the pursuers in support of the proposition advanced on the final page of the report where David Blunt QC, Recorder and Deputy Judge of the Technology and Construction Court, Queens Bench Division, stated that:

"Having reviewed the Form in the light of the House of Lords decision in the Beaufort Case I am of the view that the payment certificates provided for in clause 4 thereof are not in any sense conditions precedent to liability: they are merely part of the machinery for the administration of the contract: in my judgement the employer's liability to pay for works done under the contract arises from the performance of the works and not from the certification process." (The Form referred to was, of course, the JCT Minor Works Form).

[20] In relation to proposition (b) supra, counsel referred to Lord Drummond Young's observations within paragraph [22] in the Karl Construction case. In his Lordship's opinion, "...under the JCT and ICE Standard Forms payment is due by an employer conditionally on the issue of a certificate by the architect or engineer, or on a decree of an arbiter, or on a decree of the court. The decrees of the arbiter or the court are, for this purpose, equivalent to the certificate of the architect or engineer." (See page 280F-G). Separately, at page 280H his Lordship stated that:

"If the powers of the arbiter or court are exercise in this way, the relevant decree supersedes the architect's certificate, and it is obvious that it must entitle the contractor to payment in the same way as an architect's certificate does."

[21] In the case of Henry Boot Construction Ltd v Alstom Combined Cycles Ltd [2005] 1 WLR 3850 the English Court of Appeal held that on the true construction of the contract under consideration, certificates were not merely evidence of the engineer's opinion but were a condition precedent to the contractor's entitlement to an interim payment and final payment. Moreover, the right to payment arose not when the work was done but when a certificate was issued or ought to have been issued, but it did not follow from the fact that a certificate was a condition precedent that the absence of a certificate was a bar to the right to payment.

[22] Counsel for the pursuers took the court to paragraphs 23 and 37 within the opinion of Dyson LJ. The fact that the absence of a certificate was no bar to the right to payment was explained as being due to the fact that the decision of, in that case, the engineer in relation to certification was not conclusive of the rights of the parties, unless they had clearly so provided. (See para 23E-F). At paragraph 37, Dyson LJ stated that:

"It is a non sequitur to reason that, because interim certificates are not conclusive and may subsequently be reviewed, therefore they are not an essential part of the contractual machinery for payment. To assert that a certificate (a) is a condition precedent to a right of action, and (b) is not conclusive, since it can be reviewed by an arbitrator or a court, is not to advance two inconsistent propositions. It is, therefore, not surprising that their Lordships (in the Beaufort case) did not say anything about the question of what constitutes the cause of action or when it arises."

[23] It was submitted on behalf of the pursuers that, in the absence of a certificate, the court could nevertheless assess the amount due to a contractor. Were that not so, counsel argued that the potential for real injustice was very clear. The Henry Boot case was considered by the court of appeal in London & Regional (St George's Court) Ltd v MOD & Secretary of State for Defence [2008] EWCA Civ 1212, 2008 WL 4789974. The court's judgment was delivered by Lord Justice Hughes. Inter alia, at paragraph 22 therein, he observed that it did not follow that the absence of a certificate was, in all cases, fatal to recovery of payment, in the circumstances of that case.

[24] To recap, counsel for the pursuers' third central proposition (c) was to the effect that esto, as a matter of construction, the issue of a certificate was a strict condition precedent, the defender ought not to be able to rely upon the absence of a certificate having regard to the particular facts and circumstances of the present case. Counsel referred to passages from Emden's Construction Law paragraphs 6.31 to 6.72. Paragraph 6.48 is in the following terms:

"A question that can arise is whether the issue of a valid certificate is a condition precedent to the contractor's right to receive payment. This issue no longer has the same degree of practical importance that it once had. Where HGCRA 1996 applies, there is a right to go to speedy adjudication at any time. Save in the exceptional circumstances where a certificate is made conclusive of the parties' rights, a party who is aggrieved by the absence of a certificate, or by what a certificate does or does not say, can obtain within a very short timescale an adjudicator's decision on what ought to have been certified."

In light of the foregoing statement, counsel for the pursuers challenged, once again, the general thrust of the argument presented on behalf of the defender. In other words, he queried why the court might be precluded from assessing what is due by way of payment when it was clearly open to an adjudicator to take such a decision.

[25] The subsequent paragraph in Emden, paragraph 6.49, dealt with the situation where a certificate was a strict condition precedent to payment. It was observed that generally no payment would be due, even though the work was complete, until a certificate was forthcoming. However, counsel for the pursuers stressed that an aggrieved party may be able to rely on the fact that the machinery for certification had broken down, or on waiver, prevention or interference by the employer, so that the requirement for a certificate might be dispensed with. Paragraph 6.67 in Emden states that:

"It is a general principle that:

...if a party desires to rely on the non-performance of a condition precedent he must do nothing to prevent the condition being performed, and if there is anything that must be done by him to render possible the performance of the condition, a failure by him to do what is required disentitles him from insisting on performance of the condition." (The case of Panamena Europea Navigacion v Frederick Leyland & Co Ltd [1943)] 76 L1 LR 113, CA, per Goddard LJ at 127, approved in the House of Lords [1947] AC 428 was cited as authority for the foregoing proposition).

[26] In the present case, counsel for the pursuers stressed the circumstances in which the defender had claimed that the architect's appointment had been terminated. In the Panamena case (House of Lords) at page 435, Lord Thankerton posed the question whether the respondents were entitled to recover the amount claimed in the action - and not merely such amount as might be held to be a reasonable price - without producing a certificate of the appellants' surveyor in pursuance of one of the provisions in the contract? His Lordship went on to answer the question as follows:

"The view of the function of the appellants' surveyor under clause 7 of the contract which I have already expressed, makes it clear beyond dispute that the respondents have done everything which was necessary for them to do in order to require Dr Telfer to proceed to consider the granting of a certificate under clause 7, but that Dr Telfer declined to proceed with the matter unless he was provided with the information to which on his erroneous view of the contract, he held himself entitled; in this view the appellants concurred, and this position was maintained up to and after the issue of the writ. This means that an illegitimate condition precedent to any consideration of the granting of a certificate was insisted by Dr Telfer and by the appellants. It is almost unnecessary to cite authority to establish that such conduct on the appellants' part absolved the respondents from the necessity of obtaining such a certificate, and that the respondents are entitled to recover the amount claimed in the action."

[27] It was submitted on behalf of the pursuers in the present case that the architect had, in effect, introduced an illegitimate condition precedent when it came to certification of the amount due to the pursuers. Nor could the defender, in counsel's submission, escape contractual liability where certification ought to have been achieved absent the illegitimate condition precedent insisted upon. Additionally, counsel pointed out that Lord Hoffmann in the Beaufort case had made it clear that an architect is the agent of the employer, in this case, the defender.

[28] To complete the authoritative picture designed to support proposition (c) supra, counsel for the pursuers returned to the Karl Construction case this time at paragraph [24] therein. He restated the passage, as it happens, referred to earlier by counsel for the defender. Counsel also prayed in aid paragraph 5-020 in Keating on Construction Contracts 9^th Edn: "But if the employer or its agent prevents the architect giving a certificate, the employer cannot rely on its absence, for no person can take advantage of the non-fulfilment of a condition the performance of which has been hindered by himself". In Wilmot-Smith on Construction Contracts 2^nd Edn, the learned author, at paragraph 10.13, stated that:

"It used to be thought that architects and other professional certifiers had a quasi-arbitral role which rendered them immune from suit. That has not been the case since 1974, so there is no reason why the contract professional's non-feasance should, as against the contractor, be treated any differently from the non-feasance of the person directly employed by the employer under a building contract."

[29] In the case of BR & EP Cantrell v Wright & Fuller Ltd [2003] BLR 412, counsel for the pursuers founded upon the court's observations at paragraph 99 which dealt with the role of the architect:

"In undertaking these functions, the Architect does not act as the agent of the Employer but, since he is engaged by the Employer, he has a contractual obligation to act fairly, impartially and in accordance with the powers given to him by the conditions. The Employer may not interfere in the timing of the issue of any certificate but is not himself in breach of contract if a particular certificate is not issued or is erroneous unless he is directly responsible for that failure. However, if and when it comes to his notice that the Architect has failed to comply with his administrative obligations, by for example failing to issue a certificate required by the contract, the Employer has an implied duty to instruct the Architect to perform that function in so far as it remains within the power of the Architect to perform it and the Employer is in breach of the contract with the Contractor to the extent that he does not intervene to arrange for the correct or a correcting step to be taken by the Architect. The Architect's powers in relation to these administrative steps are derived exclusively from the conditions of contract, he has no power to act in any other way than as defined by the conditions and once the last step, the issuing of the Final Certificate, has been taken, his authority to act and his role under the contract cease. He then becomes, in traditional language, functus officio."

Decision - Grounds of Appeal 1 - 4

[30] To put matters in proper context, the procedure by way of preliminary proof before answer was designed to determine whether the defender was liable to make payment to the pursuers in respect of the items of work included in architect's instructions 5 and 6. As a matter of fact, the sheriff found that the architect was satisfied that the items of work contained in AI5 and AI6 were carried out by the pursuers during the course of the works on site.

[31] As the sheriff narrates at paragraph [62] in her note, the defender argued that no liability to make payment in terms of the contract could arise owing to the absence of a penultimate certificate and a final certificate from the architect. That was the argument restated by the defender's counsel on appeal, albeit in a more expansive manner. Counsel also identified a second "relatively crisp point" in defence, viz. that on a proper construction of the communings between the defender and the architect in 2009, the architect had no continuing locus and, accordingly, no power to grant anything in 2010.

[32] That second point was not accepted by the sheriff. She held that the discharge granted by the defender dated 23 November 2009 did not terminate the contract between the defender and the architect. (See finding in fact and law 85). Similarly, the point was not adhered to on appeal although counsel for the defender did suggest that, while it was not in issue, it had "important consequences". However, to my mind, counsel never properly articulated what those consequences were. If, as I suspect, they concerned the fact that the architect's appointment had not been terminated then I do not consider that proposition to carry with it any particular significance aside from emphasising the ill-founded nature of one aspect of the defence to the action. The sheriff's finding in fact and law regarding the effect of the discharge granted by the defender is, in my view, at best, neutral when it comes to consideration of the whole issues surrounding liability.

[33] Counsel for the defender's submissions tended to overlook the fact that, in many instances, the defender accepted in the course of his evidence that items of work were instructed. In the eyes of the sheriff, "...the acknowledgement that work was instructed determines the issue of liability. If the defender accepts that he instructed the work a liability for payment must arise." (See paragraph [39] in the sheriff's note).

[34] The sheriff then proceeded to deal with each of the thirteen items which the defender claimed were not instructed, viz. six items on AI6 and seven items on AI5 (see paragraph [40] in sheriff's note). She concluded, on the facts, that the defender was liable to make payment to the pursuers for the work instructed and recorded in AI5 and AI6 (see finding in fact and law 87). The sheriff's treatment of the evidence concerning the instruction of each item of work was not challenged on appeal.

[35] Consequently, as regards the substantive grounds of appeal (1 - 4) the defender's position stands or falls upon the argument that certification by the architect was a condition precedent to liability for payment and that before an alternative route to liability (eg litigation) could be utilised a failure in the certification mechanism required to be demonstrated.

[36] In my opinion, on this issue, the submissions of counsel for the pursuers are to be preferred. In line with those submissions and the authorities cited, my primary view is that the certification provided for in terms of clause 6 of the contract does not fall to be regarded as a condition precedent to liability on the part of the defender. I respectfully agree with what was said by the court in the Scottish Mutual Assurance case. Certification is merely part of the mechanism for the administration of the contract. In the present case, the defender's liability to pay for works done under the contract arises from the performance of the works and not from the certification process. The sheriff subscribed to that view and I consider that she was correct to do so.

[37] If my own treatment of proposition (a) for the pursuers is incorrect, I adhere to the view that proposition (b), as characterised by counsel for the pursuers, would, in any event, avail them in the circumstances. On the authorities cited by counsel in support of proposition (b), it is, to my mind, plain that if certification is, indeed, a condition precedent to payment, it does not follow that the absence of a certificate or certificates constitutes a bar to the right to payment.

[38] In my opinion, for the absence of certification to operate as being conclusive of the rights of the parties, the terms of the contract would have required to be clear and unequivocal. In other words, there ought to have been express provision to the effect that, in the absence of certification under clause 6, the contractor would be prevented from recovering payment for work done under the contract and that notwithstanding the fact that the work could be shown to have been duly executed.

[39] I am also satisfied on the third of counsel for the pursuers' hypotheses that even if certification were properly treated as a strict condition precedent, the defender, on the facts held established by the sheriff, is not entitled to rely upon its absence for the purpose of establishing a defence to an action for payment. It cannot be overlooked that the defence to the action was largely predicated upon the defender's specific (albeit erroneous) contention that the architect's appointment was terminated on 23 November 2009. (See answer 4). In my view, aside from all else, that sort of approach by the defender informed considerations as to why the certification procedure had failed.

[40] Moreover, in answer 5, it is specifically averred that the architect:

"...had no power nor any authority, actual or ostensible to issue the instruction No 5 dated 12 August 2010 and/or the instruction No 6 dated 13 September 2010. William Crichton's appointment as Architect had been terminated on 23 November 2009. He had no power or authority to issue any instructions after his appointment had been terminated."

[41] Of course, the date referred to by the defender, viz. 23 November 2009, cannot be regarded as having significance for any reason other than the issue by the defender of a discharge in favour of the architect on that date. Whilst the legal effect of the discharge may not have amounted to the termination of the contract between the defender and the architect (see finding in fact and law 85), it is plain that, as a matter of commercial reality, it served to undermine in a profound manner the prospects for securing certification from the architect thereafter.

[42] The defender's own averments expose his way of thinking on the effect of the discharge. Whatever his precise motivation for granting the same, the proposition that he, the defender, considered that its consequences included termination of the architect's appointment cannot be questioned. The defender's averments equate to the proposition that the architect was functus as at 23 November 2009. Given that, at least in his mind, the defender had contrived such an outcome by way of the discharge in favour of the architect, that cannot be regarded as anything other than interference in the mechanism of certification.

[43] In accord with what was said by Goddard LJ in the Panamena case (and subsequently approved by Lord Thankerton in the House of Lords), in my opinion, it was incumbent upon the defender to take all reasonable steps to preserve his working relationship with the architect whether contractual or otherwise in order to facilitate the certification process. The animus of the defender was such that he thought the process would be de-railed following upon the granting of the discharge. In any event, his behaviour in that connection, looked at objectively on the facts of the case, was sufficient for the court to conclude that, at the very least, it served to hinder certification. The defender is, therefore, disentitled from insisting upon certification as a pre-requisite of liability for payment.

[44] More acutely, as counsel for the pursuers submitted, by granting the discharge in favour of the architect the defender had, in effect, disabled himself from ensuring that the architect complied with his administrative obligations in terms of the contract. (See paragraph 99 supra in the Cantrell case). Moreover, it is, in my view, equally arguable that the defender was wrong to subscribe to such a flawed understanding as to the effect of the discharge and that in failing to intervene when certification was not forthcoming the defender was in breach of contract. That equates with the sheriff's finding in fact and law number 83. For the avoidance of any doubt, any apparent conflict between the views of Lord Hoffmann in the Beaufort case and those expressed by Judge Thornton QC in the Cantrell case (ie re whether or not the architect acts as the agent of the employer) is of no real moment for present purposes.

[45] Accordingly, however one approaches the way in which certification by the architect is said to have a bearing upon liability for payment, the pursuers' submissions, in my view, fall to be upheld. On the facts held established by the sheriff, the defender must fail.

[46] Counsel for the defender criticised the way in which the sheriff had determined that the architect's failure to issue the penultimate certificate and the final certificate was a failure of the defender to perform his obligations under the contract. (See finding in fact and law 83). For my part, I have little difficulty in accepting that the sheriff was entitled to arrive at that conclusion on the facts of the case. However, even if the conclusion were said to be ill-founded, that, in itself, would not affect the outcome.

[47] For the avoidance of doubt, this is not an action for damages based upon the defender's alleged breach of contract. It is an action for payment in respect of sums said to be due and resting owing for work done under a contract. It is sufficient that the sheriff upheld the defender's liability to make payment having rejected (correctly, in my view) the line of defence based upon the absence of certification being fatal to the pursuers' claim.

Grounds of Appeal - 5, 6 and 7

[48] Dealing firstly with the sixth ground of appeal which in the following terms:

"No basis is apparent for the award of expenses on the scale of agent/client, client paying."

Counsel for the defender was critical of the decision articulated by the sheriff within her note, No 14 of process, relating to her interlocutor dated 27 November 2013.

Having considered counsel's submissions and having reflected upon the sheriff's decision in this regard, I do not consider that it merits any interference. Appeals challenging decisions on expenses are, generally, to be discouraged and for good reason. The sheriff's decision to find the defender liable to the pursuers in the expenses of the action as taxed was not challenged on appeal. However, in determining that the expenses should be taxed on an enhanced basis to reflect the conduct of the litigation on the part of the defender, the sheriff was, of course, exercising judicial discretion. An appellate court should only interfere with such a decision where it is satisfied that the decision can be shown to be plainly wrong. In the present instance, I cannot be satisfied that that is so.

[49] At paragraph [12] in her supplementary note, the sheriff alludes to having set out various criticisms as to the conduct of the litigation by the defender in her main judgment dated 10 June 2013. In my opinion, those criticisms comfortably justify her decision to award expenses against the defender on a solicitor and client, client paying basis. Aside from all else, it is apparent that the progress of the proof over its initial five days was informed by the position adopted on behalf of the defender in cross‑examination to the effect that the items listed in architect's instructions numbers 5 and 6 had not been instructed by the defender. However, as the sheriff narrates in the note appended to her interlocutor of 10 June 2013, the defender, in effect, undertook a volte‑face in the course of his evidence in chief. That sort of behaviour from a litigant in modern day procedure is, to my mind, utterly reprehensible.

[50] There were, of course, other matters about which the sheriff expressed concern but, fundamentally, I have concluded that no proper basis exists for her decision, in her capacity as a judge of first instance and where she has benefitted from direct exposure to the defender's demeanour and approach to the litigation, to be altered in any way. The submissions made by counsel for the defender to the effect that the defender had attempted to reduce the scope of the litigation, that his defence was a substantive one, that the root cause was the pursuers' failure to analyse their own case and focus on certification and that, in general terms, the defender could not be blamed for the approach he had taken did not impress me having regard to the sheriff's findings. Additionally, where consideration is being given to the way in which a litigation has been conducted by one party the fact that the other party, in this case the pursuers, had failed to achieve their aspirations when it came to the sums originally sued for, is neither here nor there. I disagree with counsel for the defender's assertion that the pursuers insisted upon what he described as a "wide-ranging proof". It is plain that the initial scope of the proof, at least, arose from the unsatisfactory failure on the part of the defender to disclose what his position truly was before the proof commenced. Accordingly, I have refused ground of appeal number 6.

[51] With regard to grounds of appeal 5 and 7, I require to be addressed further and have continued consideration of the appeal for that purpose. In relation to the latter ground, whilst the situation may, in a sense, be academic, I have reached the preliminary conclusion, at least, that the sheriff's decision to ordain the defender to make payment of certain sums may not actually be incompetent per se. However, whether it is competent or otherwise, I require to be specifically addressed as to how the court should deal with payment of the sums of £1,844.16 and £5,001.70. Those sums were, of course, associated with the involvement of Mr Bunton as a man of skill. I do not recall either side at the appeal hearing advancing submissions as to how the court's interlocutor should deal with these sums on the hypothesis, for instance, that the appeal in substance were to fail.

[52] Separately, given that the hearing requires to be continued in any event for the foregoing purpose, I would welcome further submissions from counsel quoad treatment of the fifth ground of appeal. Once again, I recall, and my notes confirm this, that for the purposes of the appeal hearing, the balance of emphasis substantially lay with grounds 1 to 4. As presently advised, and whilst counsel for the defender addressed me on the question of interest to some extent, I do not have a clear exposition as to why, for instance, the earlier dates for the running of interest, favoured by the pursuers, should be preferred to the later timescale put forward on behalf of the defender or vice versa. My impression is that counsel for the pursuers did not benefit from much of an opportunity to respond to this ground of appeal owing to time constraints on the day of the appeal hearing.

[53] At all odds, as indicated above, I have continued consideration of the appeal before issuing a final interlocutor dealing with the sheriff's interlocutor from 27 November 2013. I would imagine that the two remaining grounds of appeal are habile of consideration in short compass and that it should be possible to assign a relatively early diet with a view to ensuring that the appeal can be disposed of in its entirety. I have reserved all questions of expenses meantime.