[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Murray WS v Arakin Ltd [2000] ScotCS 124 (16 May 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/124.html Cite as: [2000] ScotCS 124

[New search] [Help]

[1] In this action the pursuers, Tods Murray W.S., sue the defenders, former clients of theirs called Arakin Limited, for payment of fees which the defenders are said to be liable to pay to them for professional services which they have rendered. The defenders have a counterclaim in which they seek payment by the pursuers to them of damages in respect of alleged professional negligence.

[2] The motion which came before me on 9 May 2000 was enrolled by two persons who are not, as yet, parties to the action. Those persons are Mr Andrew McNamara and Mr Martin Frost. The motion which Mr McNamara and Mr Frost had enrolled was in the following (slightly garbled) terms:

The motion was opposed by the pursuers.

[3] The minute of sist runs in name of Mr McNamara and Mr Frost, bears to relate to the counterclaim alone, and is in the following terms:

1. The defender Arakin Limited sold on 6 April 2000 to Andrew McNamara and Martin Frost all rights, duties, obligations and benefits in respect of all past dealings and transactions with the law firm of Tods Murray as per the deed herewith produced.
2. Said deed has been intimated to the pursuer and its receipt acknowledged by the Pursuers (sic) counsel on Tuesday 25 April before Lord Penrose.
3. Said deed confirms the consent and concurrence of Arakin Limited for Andrew McNamara and Martin Frost to sist themselves in this counterclaim commenced by Arakin Limited.

[4] The "deed" referred to in the minute of sist was identified by Mr Frost at the hearing of the motion as being the document headed "Assignation of Claim" which forms part of the bundle of documents lodged as No. 66 of process. That document is in inter alia the following terms:

There follow certain undertakings by Arakin Limited which it is unnecessary to quote.

[5] When the motion called before me the pursuers were represented by counsel (Mr Hodge QC and Mr Davidson). The defenders were not represented. Mr Frost was present in person. Mr McNamara was neither present nor represented. Mr Frost suggested that he might speak on Mr McNamara's behalf, but that did not seem to me to be competent. Since, however, there was no apparent distinction between the position of Mr Frost and that of Mr McNamara, it seemed to me that if Mr Frost persuaded me that the motion, so far as enrolled at his instance, should be granted, there was no reason to deal differently with the motion so far as enrolled at Mr McNamara's instance. Mr Hodge offered no opposition to that approach.

[6] It was evident to me at the beginning of Mr Frost's submissions that the motion as enrolled did not truly express what he and Mr McNamara sought to achieve. The minute of sist ran in their names as individuals, and the motion had been enrolled by them as individuals, yet the motion bore according to its terms to be made "on behalf of the defender". Mr Frost sought to cure that formal defect by seeking leave to amend the motion to read "... on behalf of the minuters ...". Mr Hodge did not oppose amendment of the motion to that effect, and I therefore granted leave for such amendment of the motion.

[7] Although Mr Hodge did not concede the validity of the "Assignation of Claim" contained in No. 66 of process, he did not found his opposition to the minuters' motion on any attack on its validity. The debate on the motion therefore proceeded on the hypothesis that the "Assignation of Claim" was a valid and effectual assignation by the defenders in favour of the minuters of the right of action which the defenders had sought to vindicate by means of the counterclaim.

[8] In support of his motion, Mr Frost drew attention to authorities which vouched the proposition that an assignee was entitled to be sisted in room and place of his cedent as pursuer (Fraser v Duguid (1838) 16 S 1130; Stewart v Kidd (1852) 14 D 527). He further submitted that such a sist might take place at any stage of the process (Orr Ewing's Trs (1884) 12 R 343). Reference was also made to Maclaren's Court of Session Practice, 472-4. Mr Frost's submission was that he and Mr McNamara, as assignees of the defenders of the rights which the defenders had sought to vindicate by means of the counterclaim, were in the same position as the assignees of a pursuer. They were entitled to be sisted in the defenders' place to take over the conduct of the counterclaim. Mr Frost also made reference to his constitutional right of access to the courts (Macphail, Sheriff Court Practice, § 4.118; Lord Advocate v Rizza 1962 SLT (Notes) 8).

[9] For the pursuers, Mr Hodge did not dispute that a creditor might assign his right to sue, or that an assignee might take or maintain proceedings for the vindication of the assigned right. He submitted, however, that an assignee was not entitled to be sisted in room and place of his cedent to the effect of enabling him to insist in a counterclaim in proceedings in which he was not the defender. He referred to the terms of Chapter 25 of the Rules of Court which, he submitted, made it clear that a counterclaim could only be maintained by a party who was a defender in the action. The only circumstances in which it was contemplated that a counterclaim might be maintained by a party who was not also defending the principal action were where, in accordance with Rule 25.4(2), a defender maintained a counterclaim after abandonment of the principal action. The rationale for counterclaim procedure was expediency, and that expediency was not present where there was a lack of identity between the party resisting the principal action and the party insisting in the counterclaim.

[10] In my opinion the issue which requires to be resolved in order to deal with the minuters' motion is a procedural, rather than a substantive one. If the "Assignation of Claim" is a valid and effectual assignation, then no doubt the minuters may vindicate in appropriate proceedings the rights that they have acquired. The question is whether they are entitled to vindicate those rights through the medium of the counterclaim in the present action. In my opinion they are not. Although neither Mr Frost nor Mr Hodge was able to refer me to any authority in which the basis for procedure by way of counterclaim was discussed, it seems to me to be clear that the introduction of such procedure was founded on considerations of expediency. The object was to secure that where A had sued B, and B had a related claim against A, the latter claim might conveniently be determined in the same process as the former. The considerations of expediency that justify allowing a defender to make his counter claim against the pursuer in the same process as that in which the pursuer makes his claim against the defender, without the need to bring a separate action, do not, it seems to me, justify allowing a third party to enter the process to maintain a claim against the pursuer. It is in my view immaterial that the minuters are assignees of the defenders. So long as the original defenders remain in the process as such, there is, in my view, no room for allowing the minuters to enter the process to take over prosecution of the counterclaim. The position would, in my view, be different if the minuters assumed the defenders' liability to the pursuers and the pursuers consented to the substitution of the minuters for the defenders as the parties against whom the principal action is to be pursued, but that is not the situation in the present case. Taking a narrower view of the matter, looking to the terms of Chapter 25 of the Rules of Court rather than the rationale for counterclaim procedure, it is in my view clear that the Rules do not contemplate a counterclaim being brought or maintained by any party other than the defenders. I am therefore satisfied that it would be incompetent to grant Mr McNamara and Mr Frost's minute of sist. That being so, no useful purpose would be served by making an order for service of the minute on the pursuers, or for the pursuers to lodge answers to it. The minuters' motion therefore, in my opinion, falls to be refused.

[11] In my view my decision involves no infringement of what Mr Frost described as his constitutional right of access to the courts. Nor, in my view, is my decision inconsistent with the maxim assignatus utitur jure auctoris. It remains open to Mr McNamara and Mr Frost, if the assignation in their favour is valid, to vindicate the rights that they have acquired by means of an appropriate action against the pursuers. All that I have held is that the special procedure for counterclaims made available in terms of Chapter 25 of the Rules of Court to defenders is not available to them because they are not defenders in this action.

[12] After I had intimated my decision to refuse the motion, Mr Frost asked for leave to reclaim. My interlocutor is one which, in terms of Rule of Court 38.3(5), may be reclaimed against only with leave. Mr Hodge did not advance any opposition to the motion for leave to reclaim. Although the matter is in my view clear, I have granted leave to reclaim because (i) no authority bearing directly on the issue which I had to decide was cited to me, and (ii) there will be no subsequent opportunity available to the minuters to bring my decision under review.