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SHERIFFDOM OF GRAMPIAN HIGHLANDS AND ISLANDS AT BANFF

[2024] SC BAN 20

BAN-A16-21

JUDGMENT OF SHERIFF ROBERT McDONALD

in the cause

INICIO-FRESCO LIMITED

Pursuer

against

MESSRS AJ & AR BENZIE

Defender

Pursuer: L Kennedy, advocate

Defender: T Young, advocate

Banff, 4 April 2024

The sheriff, having resumed consideration of the cause, Finds the following facts admitted

or proved.

[1]

The pursuers ("IF") are a company incorporated under the Companies Acts and they

have a place of business at King Edward, Banff, Aberdeenshire, AB45 3NR.

[2]

IF carry on the business of raising potato micro-plants. Micro-plants are the initial

plants from which all potato seed crops are derived. IF purchase the micro-plants from their

suppliers and then grow them in glass houses in their premises at King Edward, Banff.

[3]

IF grow the micro-plants until they become mini-tubers. IF then harvest them by

hand to be planted in fields during the next growing season.

[4]

"Seed" or "seed potatoes" are potato crops derived from the planting of mini-

tubers. They can be planted for several generations to produce stock for sale.

[5]

Mr Robert Eric William Ritchie is the Managing Director of IF and held that position

in 2016.

[6]

The defenders ("Benzie") are a family partnership and Mr Neil John Benzie is one of

the partners. They carry on a mixed farming business based near Turriff, Aberdeenshire.

[7]

In 2015 and 2016 there were certain business dealings between IF and Benzie relating

to the growing and sale of mini-tubers and seed potatoes. These business dealings have

resulted in a number of disputes between the parties.

[8]

Benzie raised an action against IF in this court under court reference

BAN-A13-18. The parties agreed to resolve this dispute by arbitration under the Arbitration

Provisions set down by the British Potato Trade Association and the court action was sisted

to allow the arbitration to progress.

[9]

In the arbitration proceedings Benzie claimed they were due to be paid £111,850

being the balance they claimed was due by IF in respect of potatoes supplied to them

between January and November 2016.

[10]

IF lodged a counterclaim in the arbitration proceedings claiming payment of

damages. IF claimed it had entered into a verbal agreement with Benzie whereby a quantity

of mini-tubers numbering between 200,000 and 314,000 were supplied to and planted by

Benzie on behalf of IF with a view that they would be multiplied over a period of 3 to

4 years with the purpose that the eventual crop be supplied to IF at an agreed price of £300

per tonne. Benzie claimed that no such agreement had been entered into.

[11]

On 6 March 2020 the arbitrator issued his final award. He found Benzie entitled to

payment of £98,250. So far as the counterclaim by IF was concerned the arbitrator found

that there was insufficient evidence to establish that Benzie had agreed to grow mini-tubers

supplied by IF to be harvested and stored and grown again for the following year and for

2 to 3 years thereafter. The arbitrator found that the only unchallenged fact in relation to the

counterclaim was that 1.41 hectares of crops relating to mini-tubers supplied by IF were

planted and successfully certified by Benzie. The arbitrator found that Benzie had not made

that crop available to IF and he found IF entitled to payment of £14,940.75 being the value of

that crop.

[12]

In their submissions to the arbitration proceedings, IF relied on a meeting which they

claimed had taken place between Mr Ritchie and Mr Benzie, which they say took place in or

around December 2015 or January 2016 and at which they claimed Benzie confirmed they

would plant the mini-tubers again along with the high grade seeds produced in 2015.

[13]

In their submission to the arbitration proceedings, IF relied on a meeting between

Mr Ritchie and Mr Benzie which they say took place at IF's premises on 5 September

2016. They claimed that at that meeting IF's Atlantic seed was in Brazil and that Benzie had

bagged IF's high grade seed and shipped it under Benzie's label as their own stock of seed.

[14]

In the arbitration proceedings IF submitted an affidavit by Mr Ritchie dated

22 November 2019. In that affidavit Mr Ritchie referred to a meeting at his office which he

said took place on 5 September 2016. Mr Ritchie stated that at that meeting he asked

Mr Benzie about the whereabouts of his potatoes. He stated that Mr Benzie had replied that

the Atlantic potatoes were in Brazil and that he had binned the other varieties. He stated

that Mr Benzie had then left his office abruptly.

[15]

In his affidavit to the arbitration proceedings Mr Ritchie stated that he sent a lot of

text messages to Mr Benzie asking about the mini-tubers which he claimed were in the

possession of Benzie asking when/where they would be planted. In this connection he relied

on a text message from Mr Benzie containing the words "I will get a few acres to plant

them".

[16]

IF raised an action in Banff Sheriff Court against Benzie under reference

BAN-A17-20. IF was unsuccessful in this action.

[17]

The growing of seed potatoes is a highly regulated area of farming. To be marketed

seed potatoes have to be inspected and certified by SASA and one requirement for

certification in a crop inspection report is that the land on which the seed potatoes are grown

has not been used for growing potatoes at any time for the previous 7 years.

[18]

As at December 2015/January 2016, Benzie did not have any land available to plant

potato seed for anyone other than themselves.

[19]

In Scotland mini-tubers are normally planted in May to early June. Benzie normally

planted mini-tubers in April and May. Late planting would have an adverse impact on the

marketable yield of a crop and by late August to 5 September 2016 it would have been

impossible to produce an economically viable crop.

[20]

On 5 September 2016, IF's Mr Ritchie and Benzie's Mr Neil Benzie had a meeting at

IF's office at King Edward, Banff. Mr Benzie's purpose in attending that meeting was to try

and obtain payment of money which he considered was due to be paid by IF.

[21]

IF made no claim against Benzie seeking damages for breach of the alleged contract

which forms the subject matter of this action until the raising of these proceedings on

2 September 2021.

Finds in Fact and in Law

No contract was formed between the parties at any meeting between Mr Ritchie and Mr Neil

Benzie in December 2015 or January 2016 in terms of which IF would supply to Benzie

400,000 mini-tubers of the Atlantic and Russet Burbank varieties in return for Benzie

planting and harvesting same and selling them back to IF for £300 per tonne.

THEREFORE:

Repels the pursuer's pleas-in-law

Grants decree of absolvitor in favour of the defenders.

Appoints the case to a hearing on expenses to be held via Webex on Thursday, May 2

at 2pm; Parties to lodge contact details to Banffcivil@scotcourts.gov.uk by close of business

on Tuesday, 30 April 2024

NOTE

[1]

This is an action in which IF claimed £400,000 from Benzie for damages for breach of

contract.

[2]

The case called before me for a diet of debate on 11 March 2022. Following the diet

of debate I repelled the pursuer's plea-in-law to the effect that the present proceedings were

res judicata. The defender also had a plea to the effect that the pursuer's claim had been

extinguished by prescription but I was of the opinion that the pursuer had made relevant

and specific averments which, if proved, were sufficient to defeat the defenders' plea that

the claim was time barred. I therefore allowed parties a proof before answer.

[3]

Following the diet of debate the pursuer lodged a minute of amendment and the

defender lodged answers thereto. On 15 December 2022 I allowed the Record to be opened

up and amended in terms of the pursuer's minute of amendment and the defenders'

answers and closed the Record of new.

[4]

The case eventually called before me for proof before answer on 24 August 2023 and

I heard evidence on that date, on 25 August 2023 and on 11 December 2023. I heard

submissions from the parties on 5 February 2024 on which date I made avizandum.

[5]

The case which the pursuer sets out in its pleadings is that by agreement in or about

December 2015 between Mr Robert Ritchie at that time a Director of the pursuer and Mr Neil

Benzie currently a partner of the defenders, a contract was entered into whereby in 2016 IF

would supply 400,000 mini-tubers of the Atlantic and Russet Burbank varieties and in

exchange Benzie would uplift the mini-tubers from IF, plant same, harvest them and then

sell them to IF at £300 per tonne. It was claimed that IF would then sell the crop and take a

risk on whether a profit was derived therefrom.

[6]

The pursuer's position on Record is that no specific date was agreed by which Benzie

would uplift and plant the mini-tubers but that it was an implied term that the mini-tubers

would be uplifted and planted by Benzie in sufficient time to allow them to grow into a

commercially viable crop. Such a term being implied as necessary to give business efficacy

to the parties' contract.

[7]

The pursuers go on to plead that as the 2016 planting season wore on Mr Ritchie

became increasingly concerned regarding Benzie's arrangements for uplifting and planting

the mini-tubers but that at no time did Mr Benzie respond in any manner except to confirm

the agreement between the parties. The pleadings refer to a number of text messages

between Mr Ritchie and Mr Benzie in July and August 2016. The pursuers then aver that

ultimately Mr Benzie attended at IF's premises on 5 September 2016 and advised Mr Ritchie

that Benzie had not made arrangements for and did not intend to plant the mini-tubers. The

pursuer avers that by that date it was too late to make alternative arrangements to plant the

mini-tubers although it would still have been possible to plant them in an appropriate

field. The pursuer avers that in or about 5 September 2016 the mini-tubers could not be sold

or planted in an appropriate location and their value had therefore been destroyed.

[8]

The pursuer claims that he has therefore suffered loss by the defenders' breach of

contract. It is averred by the pursuer that as at 5 September 2016 the mini-tubers had a

market value of £1 each and accordingly they have suffered a loss of £400,000 being the lost

value of the mini-tubers.

[9]

The defenders' position on Record is that there was no such contract between the

parties and therefore no breach of contract.

[10]

The defenders further plead that esto there was a contract between the parties, the

pursuer's claim has been extinguished by operation of the short negative

prescription. These proceedings not having been raised until 2 September 2021.

[11]

The defenders also plead that the sum sued for is excessive.

Was there a contract?

[12]

The first question I therefore have to address is whether the pursuer has proved in

the balance of probabilities that there was a contract between the parties as averred in their

pleadings.

[13]

In support of their pleadings the pursuer led the evidence of Mr Ritchie who claimed

that a contract had been entered into and who also made reference to a number of

productions.

[14]

On this issue the defenders led the evidence of Mr Neil Benzie who denied the

existence of any such contract.

[15]

To a large extent the pursuer's case hinges on the evidence given by Mr Ritchie and

accordingly I have decided that my first task is to assess his evidence.

[16]

Mr Ritchie stated in evidence that in 2015 IF had acquired 40,000 Atlantic and 56,000

Russet Burbank micro-plants. In support of this he referred to emails which he said came

from his suppliers Gentech Propagation Limited. He also relied on one invoice and what

appeared to be the relative delivery note which he said was issued by his suppliers and

which refers to 14,000 Russet Burbank micro-plants. No invoices or delivery notes were

lodged in support of the remaining 82,000 micro-plants which Mr Ritchie claimed were

supplied to IF in 2015. I did not consider this evidence sufficient to enable me to make any

finding in fact in respect of the number of micro-plants which might have been obtained by

the pursuer in 2015.

[17]

Mr Ritchie then went on to state that each micro-plant would have produced

between 5 to 8 mini-tubers and that 96,000 micro-plants would therefore have produced

between 480,000 to 768,000 mini-tubers. He said that for the purposes of litigation the

pursuers were relying on the lower figure of 480,000. The figure of 400,000 mini-tubers

referred to in the pleadings was explained by Mr Ritchie as taking into account 80,000

mini-tubers which he said IF had been able to grow in their glass houses when they became

aware that Benzie were not going to plant any of their mini-tubers. One would have

thought that if that were the case then, logically, the pursuer should be averring that there

was an agreement to plant 480,000 mini-tubers.

[18]

In any event, Mr Ritchie then gave evidence regarding the meeting at which he says

he agreed the contract in question with Mr Neil Benzie. He stated that on 2 January 2016 he

met with Mr Benzie at Mr Benzie's farm near Turriff. He said that Neil Benzie agreed that

Benzie would plant IF's mini-tubers in about 20 acres of land. He said that Benzie would

have planted about 20,000 mini-tubers per acre. Mr Ritchie stated that after planting Benzie

would spray the crop, harvest it, store it and that IF would then pay Benzie £300 per tonne

for the mini-tubers growing to market standard.

[19]

The contract which Mr Ritchie spoke to is not the contract pled on Record which

refers to a meeting in or around December 2015 at which a contract was agreed for the

supply of 400,000 mini-tubers.

[20]

In respect of this inconsistency between the pursuer's case on Record and

Mr Ritchie's evidence the pursuer's agent submitted that his evidence did not differ from the

tenor of what had been pled. Even if the pursuer's submission in this respect is correct I

would still require to be satisfied on the balance of probabilities that there was a contract

and to a large extent this must depend on whether I found Mr Ritchie to be a credible and

reliable witness so far as this is concerned. I have a number of issues with Mr Ritchie's

evidence and these are as follows.

[21]

The first problem I have in relation to Mr Ritchie's credibility and reliability is the

discrepancy I have referred to above between his evidence and what was pled on

Record. One might not necessarily place a great deal of significance on the discrepancy in

the date of the alleged meeting at which the contract is said to have been concluded. The

pursuer's averments state that the agreement was formed in or about December 2015 and

this could be said to encompass Mr Ritchie's evidence that the meeting at which the

agreement was formed took place on 2 January 2016. However, more than 7 years after the

event Mr Ritchie was so clear in his evidence as to the precise date of the alleged meeting

that I did think it was significant that a different date had been pled on Record.

[22]

I do, however, have a more fundamental problem in accepting Mr Ritchie's evidence

in relation to the way in which this case is pled. The case on Record is that there was a

contract whereby Benzie agreed to uplift and plant 400,000 mini-tubers. This averment

makes no sense since it seems to be Mr Ritchie's position that he was expecting

480,000 mini-tubers to be planted and that the pursuers were only claiming for 400,000

having made alternative planting arrangements for 80,000 tubers sometime after

5 September 2016.

[23]

Mr Ritchie in his evidence stated quite clearly that the contract was not that

Mr Benzie would uplift and plant 400,000 mini-tubers but rather that Benzie would make

available 20 acres which would have allowed 400,000 mini-tubers to be planted which the

pursuers argue amounts to the same thing. Again, Mr Ritchie giving evidence 7 years after

the event was quite clear in what he was putting forward. He was the only witness for the

pursuers speaking to the terms of the contract yet in his evidence he describes the contract in

a quite different way from the case pled on Record.

[24]

One fundamental problem I have with the description of the contract in the

pleadings taken with Mr Ritchie's evidence is that it simply does not make

sense. Mr Ritchie's position in evidence was that Benzie agreed to plant out 20 acres with

the pursuer's mini-tubers. The pursuer's position that this is effectively the same as an

agreement to plant 400,000 mini-tubers. At the same time in evidence Mr Ritchie stated that

IF would have had 480,000 mini-tubers requiring to be planted out. However, if one accepts

Mr Ritchie's evidence that Benzie would plant about 20,000 mini-tubers per acre then

20 acres would not have been enough to plant 480,000 mini-tubers.

[25]

In addition, it is clear that in terms of Mr Ritchie's evidence the pursuers did not

actually know how many mini-tubers would require to be planted out. It was Mr Ritchie's

evidence that they could have been looking to plant out as many as 780,000 mini-tubers. In

these circumstances it would have made no sense for Mr Ritchie to have entered into an

agreement that the defender plant out only 20 acres without making arrangements to plant

out perhaps as many as 380,000 mini-tubers elsewhere. There was no evidence to suggest

that Mr Ritchie had attempted to plant out what he said was IF's crop from the 2015

micro-plants anywhere other than with the defenders (with the exception, of course, of the

80,000 which he said were planted in their glass houses after 5 September

2016). Mr Ritchie's evidence taken along with the case pled on Record is simply not

believable. I had so little faith in his evidence that I was not willing to make any finding in

fact in relation to the number of micro-plants the pursuer might have bought in 2015 and the

number of mini-tubers which they might have produced.

[26]

There were a number of other reasons why I decided I could not accept Mr Ritchie as

a credible and reliable witness. These are as follows.

[27]

The pursuers made no claim against the defenders for damages for breach of this

alleged contract until this action was raised on 2 September 2021, almost 5 years from the

date that the pursuers state they became aware that the defenders were not going to

implement the parties' contract. This claim for breach of contract could have been included

in the arbitration proceedings concluded in March 2020. Mr Ritchie stated in evidence that

this claim had not been included in the arbitration claim on the advice of his lawyer. I did

not believe this. If the pursuer had a genuine claim for damages for £400,000 I do not think

that they would have done nothing whatsoever to progress that claim until a few days

before they thought the claim might be time barred.

[28]

In cross-examination the statement of claim and counterclaim and answers in the

arbitration proceedings (6/2/1 of process) were put to Mr Ritchie. In particular, Mr Ritchie

was referred to statement 3 of the counterclaim by IF which states:

"In or around December or January 2016, Mr Ritchie of the respondents and

Mr Benzie of the claimants met on the claimant's said farm. The claimants confirmed

they would plant the mini-tubers PD again along with the high grade seed produced

in 2015 and the claimant's own commercial stock of Atlantic as previously agreed

...".

Mr Ritchie stated in evidence that this referred to the same meeting at which he says the

alleged contract in this case was formed. It was put to him that in the arbitration he was

giving a different version of that meeting. Mr Ritchie did not give a clear response to this

questioning and he did not really answer the questions which were being put to him. I

found his responses on this point evasive and unconvincing.

[29]

I allowed Mr Ritchie's affidavit in the arbitration proceedings to be put to him

(production 5/7/1). From paragraph 18 of this affidavit through to paragraph 21, Mr Ritchie

referred to having a meeting with Mr Benzie in December 2015, asking Mr Benzie in

May 2016 if the mini-tubers had been planted, chasing this up in June, Mr Benzie not taking

his calls in July, Mr Benzie avoiding him in August and having a meeting with Mr Benzie on

5 September 2016. It was put to Mr Ritchie that in this affidavit used in the arbitration

proceedings he was referring to 2015 mini-tubers which he had claimed were already in

possession of the defenders. It was put to him that in the arbitration proceedings he had

therefore been relying on the same meetings and text messages that he was now relying on

in relation to a completely different quantity of mini-tubers which he said Benzie had to

uplift from IF. Mr Ritchie's reply to this line of questioning was far from convincing. He

tried to maintain that there were two separate contracts running alongside each

other. However, when we looked at the various text messages relied upon by Mr Ritchie it

was far from clear to me which mini-tubers were being referred to. I did not think, however,

that these text messages could be interpreted as accommodating Mr Ritchie's assertion that

there were actually two separate contracts running side by side with each other and that

these messages were referring to two different lots of mini-tubers at the same time. I did not

find Mr Ritchie's evidence in this respect credible or reliable.

[30]

Paragraph 21 of Mr Ritchie's affidavit was put to him in which he stated:

"NB then visited my office on 5 September 2016. I asked him where my potatoes

were. At that time he told me the Atlantic potatoes were in Brazil and that he had

binned the other varieties. He then left my office abruptly ....".

This account of the meeting on 5 September 2016 which he gave in his affidavit for the

arbitration proceedings does not sit comfortably with the account of the meeting given by

Mr Ritchie as evidence in this case. I therefore did not believe his evidence in this respect.

[31]

In paragraph 22 of his affidavit to the arbitration proceedings, Mr Ritchie refers to a

text from Mr Benzie containing the comment "I will get a few acres to plant

them". Mr Ritchie relied on this same text message (6/5/1 page 104) to support his claim in

this action. I cannot see how this text taken in context can be said to refer to two different

lots of mini-tubers. I therefore did not find Mr Ritchie either credible or reliable in this

regard.

[32]

On the overall assessment of Mr Ritchie's credibility and reliability it was put to him

that while in this case he was asserting that the mini-tubers had a value of £1 each, in the

arbitration he had agreed a valuation of between 15p to 45p (production 6/1 page 46). He

said this concession was, maybe, made under duress. This response simply reinforced my

view that Mr Ritchie could not be considered as a credible or reliable witness.

[33]

I therefore did not accept the pursuer's submission that there had been an agreement

between the parties that the defenders would uplift and plant the pursuer's mini-tubers.

The defenders' submitted that the subject matter of this action was a fabricated claim put

forward by the pursuers because they had been unsuccessful in previous proceedings and

this seems to me to be the most likely explanation for this claim.

[34]

In reaching my decision that the pursuers have failed to establish the contract

founded upon I also took into account the lack of any independent witness to the alleged

agreement. I further took into account the lack of vouching in respect of the quantity of

mini-tubers founded upon by the pursuers. According to the pursuers these mini-tubers

were being stored by them until they were destroyed sometime after the meeting on

5 September 2016. Yet they do not appear to have attempted to count or record the mini-

tubers in any way.

[35]

Having explained why I found Mr Ritchie to be lacking in credibility and reliability, I

think it is appropriate to make some reference to the evidence of Mr Benzie who was the

main witness for the defenders. I have to say that his evidence was far from

satisfactory. His evidence was contradictory in several respects. In particular, his evidence

in relation to there being a difference between what he called "mouth agreements" and

binding contracts was very confused. He seemed to be saying on the one hand that so called

"mouth agreements" did not amount to a binding contract while at the same time he seemed

to concede that there had been occasions he had treated a "mouth agreement" as a binding

contract. In addition, Mr Benzie's responses to questions about the meaning of various text

messages was quite inadequate. However, Mr Benzie was firm in his assertion that there

had been no agreement such as put forward by Mr Ritchie and was founded upon by the

pursuers. While I found his evidence unsatisfactory in many respects I did not find

anything in his evidence which could be said to have proved the pursuer's case or led me to

believe that Mr Ritchie was telling the truth.

Quantification of the pursuer's claim

[36]

As I have decided that there was no contract between the parties there could have

been no breach of contract and therefore no damages for breach of contract due to the

pursuers. I do not require to make any decision on the value of the pursuer's claim. I do,

however, think it is appropriate to make a few comments since I had a number of difficulties

in relation to the pursuer's assessment of loss.

[37]

In the course of submissions I pointed out to the pursuer's counsel that I had some

difficulty with how the pursuer assessed its claim for damages. This is an action for

damages for breach of contract. The alleged contract was for the defenders to uplift the

pursuer's mini-tubers, plant them, harvest them and then sell them back to the pursuers so

that the pursuers could then attempt to make a profit. The general principle of damages is

that the person successfully claiming breach of contract should be put in the same position,

so far as money can, as if the contract had been performed and the pursuer's counsel

accepted that this as the general principle. I would therefore have expected to see evidence

backed up by relevant averments outlining, for example, what crop was likely to have been

harvested from the pursuer's mini-tubers, that the pursuers would have purchased that crop

from the defenders and what profit they would have been likely to derive therefrom.

[38]

The pursuer's counsel argued that in this particular case the pursuers were entitled

to assess damages on the basis of the loss in the value of the mini-tubers. That loss having

resulted from the defenders' breach. I find it difficult to see why there should be any

departure from the general principle of assessment of damages in this case.

[39]

However, even if I was persuaded that I should consider awarding damages by

reference to the loss in the value of the mini-tubers I would still have difficulty with the

pursuer's quantification.

[40]

The pursuer's position is that the defenders breached this contract on 5 September

2016 and as at that date the mini-tubers had a value of £1 each. The pursuer avers as at

5 September 2016 the mini-tubers could not be sold because by then it was not possible for

them to be planted elsewhere. This seems to suggest to me the mini-tubers had no value as

at 5 September 2016. I find it difficult to understand how the mini-tubers at the same time

could have a value of £1 each and yet no saleable value.

[41]

Even if I were persuaded that the mini-tubers had a value as at 5 September 2016 but

for the defenders' alleged breach of contract it would not have been possible for me to

properly assess the value of those mini-tubers.

[42]

The parties disputed the market value of the mini-tubers as at 5 September 2021. The

pursuers led evidence from Professor Harry Dickinson who expressed the opinion that the

mini-tubers had a value of £1 each. However, he conceded that he was unaware of actual

prices as at that date and his value of £1 per tuber was described as a notional value. His

evidence was therefore theoretical and not based on experience. Professor Dickinson could,

in my view, properly be regarded as an expert in certain aspects relating to the cultivation of

potatoes but I did not find that he had relevant expertise on the valuation of mini-tubers at

the relevant date.

[43]

Professor Dickinson's evidence was inconsistent with the evidence the pursuer relied

on in the arbitration proceedings. In addition to his concession as to an agreed value for

mini-tubers in the arbitration proceedings he also confirmed in cross-examination that in the

arbitration proceedings IF had led the evidence of a Mr David Scott, an expert potato

industry consultant who stated that the value of mini-tubers would have been between

15 and 45p each.

[44]

In this connection the defenders led the evidence of Doctor Stuart Wale who gave a

valuation of 40p per mini-tuber. Again, while I was willing to accept that Doctor Wale had

some expertise in relation to certain aspects of potato cultivation he did not, in my view,

have sufficient expertise to allow him to express an expert opinion on the value of mini-

tubers at the relevant date. He did not appear to have any first-hand knowledge of selling

potatoes at the relevant time and his valuation seemed to be derived from speaking to two

leading producers of mini-tubers within Scotland.

[45]

For the pursuers to have succeeded in a claim for damages in this case they would

have to have adduced sufficient evidence for me to make a finding in fact in relation to the

value of mini-tubers as at 5 September 2021. The valuation put forward by the pursuer was

not an expert valuation, was a notional value and was inconsistent with IF's position in the

arbitration proceedings. The defenders' valuation was based on hearsay evidence rather

than the expertise of Doctor Wale. I did not find any of this evidence helpful in arriving at a

value of mini-tubers as at 5 September 2016. I was not willing to pluck my own valuation

out of thin air. I therefore do not consider that I was in a position to make any finding in fact

as to the value of a mini-tuber as at 5 September 2016.

Prescription

[46]

It was the defenders' position that the pursuer had failed to prove the obligation

relied on had not prescribed before 2 September 2021, the date of raising of these

proceedings. This was disputed by the pursuer. As I have decided that there was no

contract between the parties I am not required to decide that point. I do not think that it is

useful or appropriate for me to express an opinion on this complicated question the answer

to which would depend on the consideration of alternative findings in fact.

Expenses

[47]

The parties were agreed that the question of expenses would be best dealt with at a

hearing on expenses when my judgment became available. I am therefore appointing the

case to a hearing on expenses on 2 May 2024