Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2014] CSIH 106

XA59/01

 

Lord Brodie

Lord Bracadale

Lord Drummond Young

OPINION OF THE COURT

delivered by LORD BRODIE

in the cause

by

TODS MURRAY WS

Pursuers and Respondents;

against

ANDREW McNAMARA  as assignee of

ARAKIN LIMITED

Defender and Reclaimer:

Act:  Duncan, QC, Watts; Simpson & Marwick

Alt:  Party

13 November 2014

Introduction
[1]        For reasons given in its opinion of the same date, in terms of interlocutor dated 16 July 2014 the court refused the reclaiming motion at the instance of Andrew McNamara who, by virtue of title conferred by assignation in his favour, has been sisted, on consignation of the sum of £100,000, as defender in the action in place of Arakin Limited.  That reclaiming motion was in respect of an interlocutor of the Lord Ordinary (Lord Woolman) dated 29 July 2013 which, among other things, found the defender liable to the pursuers in the expenses of process, except insofar as already dealt with, on an agent and client, client paying basis.

[2]        Previous procedure in the action includes the grant of decree against the defender by Lord Woolman on 14 February 2012, following proof, for payment of the sum of £86,376.40, reserving all questions of interest and expenses.  The defender reclaimed the Lord Ordinary’s interlocutor of 14 February 2012.  That reclaiming motion was refused on 14 November 2012.  The court then remitted to the Lord Ordinary to proceed as accords.  Prior to proof the case had been discussed on procedure roll.  Lord Woolman gave his opinion on 9 July 2010.  His decision was unsuccessfully reclaimed.  The court’s opinion in respect of that reclaiming motion is dated 3 March 2011.

[3]        On refusing the defender’s reclaiming motion on 16 July 2014 the court continued the question of expenses arising from the hearing.

[4]        The pursuers have now enrolled a motion for the expenses of and occasioned by the motion for review of the Lord Ordinary’s interlocutor dated 29 July 2013.  The defender intimated his opposition to that motion.  He also enrolled his own motion which is these terms:

“1.       That the hearing on November 13^th be taped for transcription.

 

2.         The defender requires a halt to proceedings as the pursuers procured an illegitimate uplift of rates equating to 60% for McLachlan and Brown and 100% for the GDC account (Refer to page 2 of this Motion).  N.B This nullifies any uplift for process 6, 12 and 36.

 

3.         The defender requires a sist to proceedings with reference to Lord Brodie’s opinion, para 8 where the pursuer owes the defender £17,140 (Ref to page 6 of this Motion).

 

4.         The defender requires a sist to proceedings until the Lord President gives a ruling under rule 20.13.

 

5.         The defender states that the pursuer has no honest belief that the defender owes the pursuer £460.24 for process 12 and 36.

 

6.         The defender states that there is an agreement with the pursuer that the defender overpaid £70,817 for process 12 (Refer to page 81 of Process 471).

 

7.         The pursuer has no belief that the defender owes £61,059.33 for the GDC account as they are fully aware that that the GDC ledgers state that the defender is due a credit of £1,546.”

 

[5]        The parties’ respective motions came before us for hearing on 13 November 2014.

[6]        In support of his motion the defender lodged Reasons for Motion extending over ten pages (marked pages 2 to 11).  They narrate what are said to be errors on the part of Lord Woolman and this court in a number of respects relating to the substantive issue as to whether the defender was due to make payment to the pursuer of a balance of fees properly charged or, as contended for by the defender, the pursuers had in fact been overpaid.  In his oral submissions to the court, the defender drew particular attention to paragraph 2(b) which appears on page 11 of the Reasons for Motion.  The paragraph is in these terms:

“b.       On July 1^st 2014 Mr Duncan advised Lord Brodie that the sums sued for of £204,594 was wrong and it was discovered thirteen years after the summons was raised the sum sued for the GDC account should have been £62,860.77.  The Auditor abated £80,000 from process 12 and by deducting this sum from the new figure of £62,860 establishes that the pursuer owes the defender £17,140.”

 

[7]        In preparing for the hearing on 13 November 2014, we had read the Reasons for Motion.  Having considered the Reasons, as supplemented by the oral submission of the defender, as assisted by his wife, it appeared to us that the position put forward was a reiteration of the defender’s dissatisfaction with the decision of Lord Woolman as expressed in his interlocutor of 14 February 2012 and a consequential dissatisfaction with this court in not entering into a review of that interlocutor in its consideration of the reclaiming motion against Lord Woolman’s interlocutor of 29 July 2013.

[8]        The defender characterised what is referred to at paragraph 2(b) of page 11 of the Reasons for Motion as res noviter, in other words a matter arising of new.  As we understood him, his position was that senior counsel for the pursuers had during his submission in the reclaiming motion against the interlocutor of 29 July 2013, for the first time, made a concession, the result of which, when taken with an abatement to the pursuers’ account of expenses which had, at some time, been made by the auditor, had the result that the pursuers were the defender’s debtor in the sum of £17,140.  The defender attached importance to the terms of paragraph 8 of the court’s opinion of 16 July 2014.  We were quite unable to accept that senior counsel’s explanation of part of the procedural history of the action, which was recorded at paragraph 8 of our opinion of 16 July 2014, has the consequence asserted by the defender.  However, critically, the liability of the defender to the pursuers in respect of any balance of fees that were due was a matter determined by Lord Woolman in terms of his interlocutor of 14 February 2012, not his interlocutor of 29 July 2013.  The interlocutor of 14 February 2012 was reclaimed against.  That reclaiming motion was refused on 14 November 2012.  No appeal having been made to the United Kingdom Supreme Court against the interlocutor of 14 November 2012, the liability of the defender to the pursuers in respect of a balance of fees has been finally determined in terms of that interlocutor.  That is not a matter which can be reviewed in a reclaiming motion from Lord Woolman’s interlocutor of 29 July 2013, even had there been an evidential basis upon which to do so, which there is not.

[9]        The defender explained that what he sought in terms of his motion was for the court to sist any further proceedings and that for two purposes:  first, to allow the defender to determine what action to take in relation to what he characterised as res noviter and, second, to allow the Lord President to give a ruling on a judicial complaint which the defender had made in relation to the hearing and determination of the reclaiming motion which was the subject of the opinion dated 16 July 2014.

[10]      We refused the motion to sist.  No convincing reason was put forward for a sist to be granted.  Other than dealing with the pursuers’ motion for expenses in relation to the reclaiming motion which is subject to the opinion of 16 July 2014, there is little or nothing for this court to do further by way of proceedings.  Moreover, a sist is unnecessary for the purposes mentioned by the defender.

[11]      Senior counsel moved on behalf of the pursuers for the expenses arising from the reclaiming motion which was the subject of the opinion of 16 July 2014.  No ground for refusing that motion was advanced by the defender other than the errors which the defender said had been made by the court.  The usual rule is that an award of expenses follows success and, accordingly, we granted the pursuers’ motion for the expenses of the reclaiming motion and, for the same reason, the expenses associated with the hearing on 13 November 2014.