Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 90

 

CA41/11

OPINION OF LORD TYRE

In the cause

JANE FORREST (AP)

Pursuer;

against

FLEMING BUILDINGS LIMITED AND ANOTHER

Defenders:

Pursuer:  Gale QC, Mohammed;  TLT LLP

First Defenders:  Broome;  MacRoberts LLP

Second Defenders:  G Walker;  Simpson & Marwick

 

10 July 2015

Introduction: background to the present action
[1]        In 2005 the pursuer and her estranged husband, William Forrest, instructed the first defenders to build a house at 17 Fairyknowe Gardens, Bothwell, Lanarkshire.  They also instructed the second defenders, Gibb Architects Limited, to provide architectural services.  The building contract had a completion date of 7 August 2006.  The contract price was £513,791.03; however the pursuer avers that certain additions were agreed and certain works omitted, giving an adjusted contract sum of £439,356.03.

[2]        As the contract progressed, the pursuer and Mr Forrest made payments to the first defenders following valuations by the second defenders.  The total paid is averred to have been £415,762.75.  However, the pursuer and Mr Forrest became dissatisfied with the rate of progress and with the quality of the works.  Expert reports were obtained and lists of alleged defects prepared.  Work by the first defenders ceased without the house having been completed.  Relations deteriorated between the pursuer and Mr Forrest on the one hand and the second defenders on the other.  By letter dated 20 April 2007 the second defenders’ appointment was terminated with 14 days’ notice.  During the period of notice, the second defenders issued two certificates (11 and 12) valuing the first defenders’ works at £462,985 and £508,000 respectively. 

[3]        The history of the parties’ dispute since then has been one of protracted litigation.  On 17 July 2007, the first defenders served a notice of adjudication on the pursuer and Mr Forrest.  On 26 September 2007, the adjudicator decided that the pursuer and Mr Forrest were to pay the first defenders the sum of £112,598.75, plus interest and expenses, within seven days of the date of the decision.  No payment was made.  In October 2007, the first defenders raised an action for payment in this court.  The action was defended on the ground that the first defenders’ contract had been with a company called KWF Homes Limited and not with the pursuer and Mr Forrest.  An 8-day preliminary proof was held in March and May 2008, after which Lord Menzies held ([2008] CSOH 103) that the first defenders’ contract had been with the pursuer and Mr Forrest, and granted decree for payment of the sum found due by the adjudicator plus interest and the adjudicator’s fees.  The pursuer and Mr Forrest reclaimed.  By interlocutor dated 10 February 2010 ([2010 CSIH 8), an Extra Division refused the reclaiming motion.  The pursuer sought to appeal to the Supreme Court but her appeal was dismissed in October 2010 for procedural default consisting of a failure to lodge security and a statement of facts and issues.

[4]        On 28 October 2010, the first defenders presented a petition in Hamilton Sheriff Court for sequestration of the pursuer.  The proceedings were defended, and on 18 May 2011 the petition was dismissed after the pursuer entered into a Debt Arrangement Scheme.  Payments due under the scheme were not made and the DAS payment programme was revoked in July 2012.

 

History of this action
[5]        On 8 November 2010, the pursuer raised the present action, initially against the first defenders alone.  She concluded for reduction of the second defenders’ certificates nos 11 and 12 and of a decision to award the first defenders an extension of time (Conclusion 1), plus damages (Conclusion 2).  By interlocutor dated 25 March 2011, on the unopposed motion of the pursuer, the action was transferred to the commercial roll.  Her claim was subsequently amended to seek damages in terms of Conclusion 2 against the first and second defenders jointly and severally, together with a second and separate claim for damages against the second defenders alone (Conclusion 3).

[6]        Motions for caution were enrolled by both defenders.  On 29 June 2011, Lord Glennie heard and granted both motions, ordaining the pursuer to provide caution for expenses, within six weeks, in the sum of £20,000 to each of the defenders.  Lord Glennie directed that there was to be no procedure in the action until further order of the court.  There then followed a protracted period during which the pursuer failed to lodge caution, and numerous prorogations of the time for lodging caution were granted by the court against opposition by the defenders.  Between 8 December 2011 and 16 August 2012 the action was sisted.  On 31 August 2012 Lord Malcolm refused a motion by the pursuer to reclaim Lord Glennie’s interlocutor of 29 June 2011.  By June 2013 no progress had been made, with various motions by the defenders seeking absolvitor having been refused.  However, on 12 December 2012 the pursuer was granted legal aid, and attempts by the defenders to have the decision to grant legal aid reviewed by the Scottish Legal Aid Board were unsuccessful.

[7]        On 21 June 2013, Lord Hodge recalled Lord Glennie’s order to provide caution.  Lord Hodge held ([2013] CSOH 105) that the grant of legal aid was a relevant change of circumstances and that it was appropriate in the interests of justice to recall the order for caution.  However, Lord Hodge observed (paragraph 16):

“I wish to point out that the pursuer cannot expect that the court in managing the progress of the action will show her the indulgence which she has been shown in the past.  Her advisers will be expected to come forward with proposals to conduct the litigation in an efficient and cost-effective manner, such as, where appropriate, the remit of disputed matters of fact to a man of skill, and the court will be astute to prevent unnecessary expense.”

 

Motions by the defenders to reclaim Lord Hodge’s interlocutor were refused.

[8]        The way now appeared to be clear for the action to proceed on its merits, albeit two and a half years after it had been commenced, and seven years after the events with which it was concerned.  It is appropriate therefore now to set out in a little more detail the basis of the pursuer’s claim on record.  The case against the first defenders is that the building works were defective.  Reference is made in the pursuer’s pleadings to a report dated 5 March 2011 and updated in February 2014 by Mr Donald Canavan, architect, a senior consultant of the Hurd Rolland Partnership.  A large number of alleged defects are identified.  The case against the second defenders is (i) that they were in breach of contract in issuing certificates 11 and 12 and granting an extension of time, and separatim for doing so after their engagement had been terminated; and (ii) that they were negligent in their administration of the building contract.  The pursuer has encountered considerable difficulty in quantifying her claims against each of the defenders; I return to this below.

[9]        On 8 October 2013 the case called before me for a continued preliminary hearing.  Both defenders indicated that they had arguments on the merits and on quantum that they wished to debate.  The pursuer was given time for further adjustment and an order was made appointing parties and their experts to meet to attempt to narrow the issues in dispute.  A procedural hearing was fixed for 14 January 2014.  When the case called before me on that occasion, the pursuer was represented by Mr Gale QC who had only recently been instructed due to delays in obtaining legal aid for the employment of senior counsel.  Mr Gale explained that he had advised the pursuer that further investigations on quantum were needed, and accepted that substantial amendments were required to the pleadings.  No documents had been lodged by the pursuer in accordance with RCS 47.12, and no meeting of parties and/or their experts had taken place.  I allowed a further period of adjustment and prorogated until 18 March 2014 the time for the lodging of a joint note of a meeting of experts.  A one-day diet of debate was fixed for 6 May 2014.  The date for that debate was subsequently amended to 25 June 2014.

[10]      On 25 June 2014 the case called for debate before Lord Malcolm.  Mr Gale advised the court that the pursuer had withdrawn his instructions.  A motion by the pursuer in person to discharge the diet of debate was refused.  Lord Malcolm proceeded to hear submissions with the pursuer representing herself.  On 29 October 2014, Lord Malcolm delivered his opinion ([2014] CSOH 158), and pronounced an interlocutor excluding from probation a claim by the pursuer for damages for stress and anxiety but otherwise refusing the defenders’ respective motions for dismissal of the action as a whole.  On certain matters mainly concerning the merits of the action, Lord Malcolm expressed the view that the pursuer had made sufficient averments to entitle her to proof before answer, especially in a commercial action.  On certain other matters mainly concerning quantum, Lord Malcolm observed that it would be incumbent upon the pursuer to provide further specification and vouching of her case, and that she would have an opportunity to do so prior to any proof.  A by order hearing was fixed to address an issue of whether Mr Forrest should be sisted as an additional pursuer in the action.

[11]      That hearing took place before me on 9 December 2014.  After hearing argument, I refused a motion to sist Mr Forrest as an additional pursuer on the ground that the application was being made long after expiry of the quinquennium.  Mr Gale, re-instructed on behalf of the pursuer, also sought and was granted leave to delete an article of condescendence in which the pursuer claimed title to sue based upon an assignation by Mr Forrest.  It was then contended on behalf of the defenders that the refusal of the motion to sist Mr Forrest as a party and the deletion of the case based on assignation rendered irrelevant the pursuer’s claim for the whole loss alleged to have been sustained.  In an ex tempore judgment, I addressed this argument as follows:

“In my opinion the refusal of the minute and the deletion of reliance on the assignation does raise a sharp issue with regard to the pursuer’s title to sue for the sum concluded for, which, so far as the record discloses, consists of the whole losses said to have been sustained as a consequence of the defenders’ respective alleged breaches of contract.  Nothing is pled to explain why she does have such a title.  An alternative possibility might be that she has title to sue for only half of the losses said to have been sustained, on the basis that the defenders’ respective alleged duties were owed to the pursuer and Mr Forrest jointly and severally.  I cannot express a view as to which is correct, but clearly some amendment of the pursuer’s pleadings is needed, one way or the other.

 

…

 

It is clear both from what I have said regarding the pursuer’s title to sue, and from what Lord Malcolm said in paragraphs 11 and 15 of his Opinion, that the pursuer’s averments, even now, are not sufficient to entitle her to a proof before answer.  I bear in mind that Lord Malcolm referred to “ample opportunity” to amend, but I also bear in mind the length of time for which this action has gone on already and Lord Hodge’s previous observations.  I am minded to allow the pursuer time to amend to deal with title to sue and also specification of her claim for damages.  I do not expect this to be done before Christmas but I do expect it to be done expeditiously and on the basis that this is the last chance.  I have in mind a period, allowing for Christmas, that will expire in mid-January, with time for the defenders to answer and then a brief period of adjustment, followed by a By Order hearing.  I emphasise that the interlocutor will specify the matters that require to be attended to and that any failure may result in decree by default in the form of dismissal.”

 

[12]      On 22 January 2015, a minute of amendment on behalf of the pursuer was received and amendment of the record allowed.  Among other things, the amendment reduced by half the sum sued for in Conclusion 2, amended the sum sued for in Conclusion 3 from £150,000 to £190,543.18, and deleted certain articles of condescendence.  No amendment was made at this time to the remaining articles relating to quantum.

[13]      The case called again before me by order on 18 February 2015.  The defenders sought decree of dismissal by default on the ground that nothing had been done by the pursuer to address the criticisms previously made of the relevancy and specification of the averments relating to quantum.  Mr Gale candidly explained the difficulties that the pursuer was encountering in progressing her case.  He accepted that the pleadings on loss sustained were “incomplete”.  This was said to be due to gaps and inconsistencies in advice received from the pursuer’s expert witnesses, Mr Canavan and Mr John Clelland, of Whyte & Barrie, Chartered Surveyors.  The solution envisaged was to arrange a meeting between Mr Canavan and Mr Clelland followed by production of a revised expert report.  There had been difficulties and delays in obtaining legal aid sanction for such a meeting.  Mr Gale sought a continuation of the by order hearing to allow time for the experts to meet and for consequent adjustment of the pleadings.  Having considered parties’ arguments, I continued the by order hearing, and the defenders’ motions for dismissal, until 20 March 2015.

[14]      At the hearing on 20 March 2015, I allowed a report by Mr Clelland to be lodged.  The pursuer also produced an adjusted summons with certain new averments based upon the terms of Mr Clelland’s report.  The defenders sought a debate and this was appointed to take place on 29 April 2015.  Notes of argument by the respective defenders were ordered and timeously lodged.  Having heard parties on 29 April 2015, I made avizandum.

 

The pursuer’s averments relating to loss
[15]      The pursuer’s averments of loss with regard to the claim against both defenders are not easily summarised or, indeed, understood.  It is appropriate to set them out in full, as adjusted prior to the debate:

“…  The pursuer in this action seeks damages in respect of one half of the losses sustained by her and her husband as a consequence of the defenders breaches of contract et separatim fault.  The pursuer and her husband funded the building project by means of an overdraft facility from the Airdrie Savings Bank, repayable on demand.  As a result of the breach of contract and negligence of the first and second defenders as hereinbefore condescended upon, the works were defective and the project overran significantly.  As a result of that delay, the bank demanded repayment of the funds it advanced to the pursuer and her husband.  The pursuer and her husband required to sell the property at 17 Fairyknowe Gardens, Bothwell, together with other assets in order to raise sufficient money to repay the bank.  In April 2007 the pursuer sold the house to JG Hives Limited, a company owned by her father.  The price was £125,000.  The sale was not on the open market.  But for the first and second defenders’ breach of contract and negligence, the building project would have been complete by April 2007 and the property would have been worth £730,000.  The pursuer and her husband would have been able to sell the property on the open market for that price.  The sale of the property by the pursuer and her husband to JG Hives Limited was not for full value nor was it on the open market.  At the time of the sale the pursuer and her husband were under pressure to repay the outstanding overdraft facility to Airdrie Savings Bank.  The circumstances hereinbefore condescended upon, and in particular the breakdown of the relationship between the defenders and the pursuer were such that the pursuer suffered anxiety and depression.  It was in these circumstances that the sale to JG Hives Limited was agreed.  In any event the property was at the time of the sale to JG Hives Limited in an unfinished condition.  As noted by Hurd Rolland it required remedial work to correct defects and to bring it into the condition that it would reasonably be expected to meet at the conclusion of the contract.  The value of those remedial works has been estimated at £398,045.  The property did not have the benefit of a building warrant completion certificate.  It did not have a completed architect certificate.  Subsequently it has been the subject of a dangerous building notice issued by the local authority.  The absence of a building warrant completion certificate and an architect’s completion certificate would mean that a potential purchaser could not obtain a mortgage over the property.  Any potential purchaser who required a mortgage would have to satisfy the local authority that the identified remedial works had been carried out.  A cash purchaser would, in the circumstances, seek a substantial discount on the purchase price.  A reasonable professional assessment of the diminution in value of the property as a result of the defects identified by Hurd Rolland would be £350,000, and accordingly the value of the property reflecting the defects would be in the region of £380,000.  Reference is made to the report prepared by John Clelland MRICS of Whyte & Barrie, Hamilton, dated 10^th March 2015 is referred to for its terms.  There has accordingly been a diminution in value of the property as a result of the breach [of] contract and negligence of the first and second defenders.  The sum second concluded for, or some lesser sum, reflect the diminution of value of the property.”

 

[16]      The sum sued for by the pursuer, after the amendment allowed on 20 March 2015, was £302,500.  Certain points are worth noting.  The first is that, arithmetically, the sum of £302,500 represents one half of the difference between £730,000, being the value that the pursuer avers that property would have had in April 2007 if then complete, and £125,000, being the sum at which the property was sold, admittedly at less than full value, to the pursuer’s father’s company.  The second point is that this sale is said to have taken place in April 2007.  The third point is that a perusal of Mr Clelland’s report discloses that the estimates of £350,000 for costs of repair, and consequently of a value of £380,000, are based on current (i.e. 2015) costs, under reference to a schedule of defects and remedial works prepared by Mr Canavan in April 2011 and “overmarked February 2015”.  The fourth point is that the total costs are stated in this schedule to be £398,045.  The difference between this figure and £350,000 is explained by Mr Clelland as being because “some of the costs and the provisional sums either may not be fully reflected by a prospective purchaser’s decision with regard to price or may be overly comprehensive”.

[17]      The pursuer’s claim in Conclusion 3 against the second defenders alone is quantified on the following basis:

“But for the second defender’s breach of contract et separatim negligence, certificates 11 and 12 would not have been issued.  Had those certificates not been issued the pursuer and her husband would not have incurred the costs of defending the adjudication and subsequent court proceedings to enforce the adjudicator’s award.  No proceedings would have been raised if the certificates had not been issued.  The pursuer and her husband have accordingly incurred the costs of defending these proceedings as a result of the breach of contract et separatim negligence of the second defender….”

 

There follows a list of legal and other professional expenses said to have been incurred either by the pursuer and her husband or by the pursuer’s father, in respect of which he is entitled to reimbursement.  Some of the fees are said to remain outstanding.  The pursuer avers that “The aforesaid costs are the sums third concluded for”.  For my part, however, I can find no connection between the list of sums said to have been incurred, whether still outstanding or not, and the sum sued for.  The grand total of all sums in the list is £316,564.65, which is not the sum third concluded for (ie £190,543.18); nor, indeed, is it double the sum third concluded for, as one might have expected.  I have tried unsuccessfully to identify a subset of the figures that might approximate to the sum sued for.  No supporting documentation for any of the items has been produced.  At the debate, Mr Gale was unable to explain how the sum sued for was calculated.  I have already noted that it was recently substituted by amendment for a previous round-sum estimate of £150,000.

 

Arguments for the defenders
[18]      On behalf of the first defenders, it was submitted that the action in so far as directed against these defenders ought to be dismissed for the following reasons:

(i)         The pursuer’s case was based on diminution of value.  No relevant case was made for a diminution of value of £605,000, or of half thereof.  The only diminution in value averred was £350,000, half of which was £175,000.

(ii)        There was in any event no adequate specification of a diminution in value of £350,000.  The method by which the figure of £398,045 was arrived at for the purposes of Mr Clelland’s report was not specified.  Many items in Hurd Rolland’s schedule of repairs were subject to the qualification “provisional allowance”.  Mr Clelland’s calculation used 2015 costs, which were irrelevant to diminution in value at the time of the sale in 2007.  The figure of £398,045 itself was based upon 2011 costs, updated in 2014.

(iii)       No adequate explanation was given of the reasons why Mr Clelland considered a deduction of around £48,000 appropriate in assessing which costs of repair fell to be taken into account in calculating the diminution in value.

(iv)       In calculating the cost of remedial works required to put the property into the condition it could reasonably be expected to have been in at completion, no allowance was made for the cost of works that would in any event have been required to complete the contract in accordance with the contract.  The diminution in value was accordingly overstated.

[19]      Those arguments were adopted on behalf of the second defenders in relation to Conclusion 2.  As regards Conclusion 3, it was submitted that

(i)         the claim was wholly lacking in specification, as no details were provided of what the expenses related to.  Some appeared to be litigation expenses, and the relevance and significance of others was not explained;

(ii)        the pursuer did not offer to prove that she intended to pay any of the sums owing to third parties said to be “outstanding”.  As she had been in a Debt Arrangement Scheme there was no reason to assume that she intended to pay them.

 

Argument for the pursuer
[20]      On behalf of the pursuer, Mr Gale accepted, on reflection, that a claim against the defenders based upon half of the difference between £730,000 and £125,000 would be, as he put it, a difficult one to pursue.  He acknowledged that the claim ought to be for £175,000, ie one half of the £350,000 diminution in value brought out in Mr Clelland’s report, and sought leave to amend Conclusion 2 accordingly.  As regards the defenders’ other arguments, it was submitted that these were matters for proof, not debate.  The defenders had fair notice of the pursuer’s case, including a detailed and up-to-date report from Mr Clelland.  If Mr Clelland had erred in using 2015 costs (which was not conceded), that was a matter that would be exposed at proof.  Similarly, if Mr Canavan had made a miscalculation by omitting to deduct the cost that would have been required to bring the house to completion, so be it.  These were matters of arithmetic to be determined after the evidence had been heard.  It might be that after the defenders had obtained their own reports there would be a degree of common ground.

[21]      So far as the case against the second defenders for wasted expenses was concerned, it was confirmed that the pursuer would be seeking half of the full sum.  However, as I have already noted, Mr Gale was unable to explain how the sum third concluded for was calculated.  He believed that there were invoices on a file to vouch the various expenses claimed.

 

Decision
Conclusion 2
[22]      Mr Gale’s motion to amend the sum sued for in Conclusion 2 to £175,000 was opposed by both defenders, inter alia on the ground that it came too late.  I have to say that I too find it difficult to understand why the pursuer persisted for so long in quantifying her claim on a basis that was patently irrelevant, having regard to its reliance upon an amount received on a sale at an undervalue to a non-arm’s length purchaser.  Nevertheless, had this been the only or principal amendment required in order to make the pursuer’s case relevant, I would, having regard to the interests of justice and even at this very late stage, have allowed the amendment to be made.  But the difficulty for the pursuer is that such an amendment would not have the effect of rendering her case relevant for proof before answer.  There remain, in my opinion, serious flaws in the case which go beyond matters proper for exploration by evidence.

[23]      The approach to quantification of damages where building works have not been performed conform to contract is reasonably well settled.  In McLaren Murdoch & Hamilton Ltd v The Abercromby Motor Group Ltd 2003 SCLR 323 (OH), Lord Drummond Young observed at paragraph 30, under reference to the speech of Lord Lloyd of Berwick in Ruxley Electronics and Construction Ltd v Forsyth [1996] AC 344 at 367:

“…  A pursuer will be entitled to the cost of making building works conform to contract unless that cost is significantly disproportionate to the benefit that is obtained from it.”

 

In the latter type of case, of which Ruxley Electronics is a helpful example, the appropriate measure of loss will be diminution in value.  In the present case, the pursuer bases her case on diminution in value.  No doubt this recognises that the pursuer disposed of her interest in the house in 2007, so that no question now arises of her incurring the cost of carrying out works necessary to complete the house conform to contract.  In fact she has chosen to use the cost of repair works as the measure of diminution in value.  But in at least two respects the method of computation of diminution in value fails, in my opinion, to provide a relevant basis for calculation of loss.

[24]      Firstly, use of 2015 costs does not afford a relevant basis of measurement of diminution in value as at the critical date, being the date in 2007 when the property was disposed of and the pursuer’s alleged loss crystallised.  This is not merely an error on the part of an expert witness which is appropriately addressed after proof.  The pursuer’s pleadings simply contain no basis for assessing the diminution in value as at April 2007, measured by reference to repair costs or otherwise, said to have been caused by the defenders’ breach of contract or negligence. 

[25]      Secondly, the pursuer’s claim for one half of £350,000 takes no account of the fact, implicit in the pursuer’s pleadings, that if the building had been completed conform to contract further sums would have been due by the pursuer and Mr Forrest to the first defenders.  At article 5 of condescendence the pursuer avers an agreed price of £513,791.03, plus agreed additions of £16,898, less certain omissions said in Mr Canavan’s report (at paragraph 4.01) to amount to £91,333, although so far as I can see this figure is nowhere fully explained.  The pursuer further avers that the sums paid to the first defenders amounted to £415,762.75.  On the face of those averments an unspecified sum of at least around £24,000 but up to almost £115,000 could still be due to the first defenders and would fall to be deducted in calculating the diminution in value as at April 2007.  I did not understand Mr Gale to dispute that an allowance required to be made in respect of costs that would have been required in 2007 to complete the contract works.  Again, however, neither the pursuer’s pleadings nor either of the expert reports lodged in support of the pursuer’s case contains anything that would enable the amount of the allowance to be calculated.

[26]      Taken together, these two aspects of the pursuer’s pleadings in relation to quantification of the loss claimed in Conclusion 2 are fatal to its relevancy.  I also consider that there is force in the other criticism made by defenders of the use of £350,000 as the basis of diminution in value.  As I have noted, this figure was produced by Mr Clelland by making a deduction of about £48,000 from Mr Canavan’s 2014 estimate of cost of remedial works because he considered that the works might not reflect a prospective purchaser’s decision or might be “overly comprehensive”.  No further explanation is provided and in my opinion this does not give adequate notice of the basis upon which the sum sued for is calculated.  It is a cause for further concern that Mr Clelland’s exercise of judgment, based on current (2015) costs, utilises a schedule of repair costs originally prepared in 2011 and updated to 2014.

 

Conclusion 3
[27]      I have already noted that it is impossible, on the face of the pleadings, to ascertain how the sum sued for is calculated, and that Mr Gale was unable at the debate to provide any assistance.  The status of sums totalling around £124,500 stated to “remain outstanding” is unclear and unexplained.  Standing the pursuer’s insolvency and subsequent failure to comply with a debt arrangement scheme, I am not prepared to assume, without further explanation, that these sums remain payable or that they will ever be paid.  Moreover, if the expenses listed were incurred in defending the adjudication and subsequent court proceedings, any remaining outstanding would appear to have been extinguished by prescription.  The adjudication took place in 2007 and the final interlocutor of the Inner House was pronounced in February 2010.  In all of these circumstances, some explanation would be required as to why these sums remain due by the pursuer and recoverable from the second defenders.  The same may apply to any obligation incumbent upon the pursuer to repay sums to her father.  Nor, finally, is there any specification by way of either pleading or documentary productions of the fees and other expenses said to have been incurred, beyond the identity of the recipients, so that it is not possible to ascertain whether they related to the adjudication and subsequent court action as opposed to the parties’ underlying dispute or something else entirely.  Some of the expenses listed, such as a payment of £6,600 to a supplier of tax and financial services, raise particular questions as to their relevance.  In a commercial action, I regard these failures of specification as material, especially having regard to the terms of my interlocutor of 9 December 2014 expressly allowing further adjustment inter alia for the purpose of specifying the pursuer’s claim for damages.

[28]      In view of all of these failings, I consider that the pursuer has not pled a relevant case for payment of the substantial sum of £190,543.18 third concluded for.

 

Disposal
[29]      I have set out above the long and unhappy history of the dispute between the pursuer and Mr Forrest on the one hand and the respective defenders on the other.  The present action has been on the commercial roll for four and a half years and is still not pled relevantly and sufficiently specifically for proof.  I recognise that considerable time was lost while the matter of provision of caution was the live issue, and I readily acknowledge that progressing a commercial action may be more difficult for a party dependent upon a grant of legal aid.  Having said that, the action was transferred to the commercial roll at the instance of the pursuer, and I bear in mind Lord Hodge’s observation, more than two years ago, that she could not expect the court in managing the progress of the action to show her the indulgence that she had been shown in the past.  The issues debated before me have been live for many months, if not years.  It was made clear to the pursuer that the most recent amendment procedure was to be regarded as a final opportunity to put her case into a relevant state.  That has not been done.

[30]      In determining what the interests of justice require in the circumstances now before the court, I must have regard to the position of the respective defenders as well as that of the pursuer.  The present action, quantified until recently at £605,000 in the case of the first defenders and £755,000 in the case of the second defenders, has been extant since late 2010, no doubt with implications for the cost of insurance cover and the possibility of reputational damage.  In my opinion the pursuer has now had ample opportunity to progress the claim and has failed to do so.  I hold that no relevant case has been made in support of either Conclusion 2 or Conclusion 3.  Conclusion 1, for reduction of certificates 11 and 12 and of the second defender’s decision to award an extension of time, is of no practical effect on its own.  That being so, I shall sustain the first and second pleas in law for the first defenders and the first plea in law for the second defenders and dismiss the action.