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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Burnside Kemp Fraser v Stirton & Anor [2000] ScotCS 304 (5 December 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/304.html Cite as: [2000] ScotCS 304

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[1] The pursuers are a firm of solicitors in Aberdeen. They have raised the present action against two of their former clients for professional fees in respect of work done by them. The defenders were formerly in business as building contractors and sought to recover sums said to be due to them for renovation work instructed by Mr and Mrs Knight. The pursuers accordingly raised an initial writ on the defenders' behalf in Aberdeen Sheriff Court which was apparently wholly unsuccessful. It is in respect of the professional fees incurred in the course of the action that the pursuers have raised the present case against the defenders. In response the defenders have averred that in carrying out their professional duties in the course of the action in Aberdeen Sheriff Court the pursuers did not exercise the ordinary standard of care to be expected of a solicitor. It is said in particular that despite being given full instructions the case was twice taken to debate by the defenders, and as a result of that and other failures to aver the case sufficiently, various Minutes of Amendment had to be drafted by the pursuers causing unnecessary expense. Further it is said that the pursuers failed to advise the defenders of the likely cost of the action at the outset during the currency of the case. Finally, the defenders point out that the pursuers have not had the account of expenses which forms the basis of their claim taxed by the appropriate Auditor of Court.

[2] At the outset of the debate counsel for the pursuers intimated that he wished to lodge a Minute of Amendment, which was to the effect that the pursuers now accepted that it was a term of the contract that, in the provision of legal services by them, they require to act in a reasonably competent manner, under explanation that this was an implied duty and further that they fulfilled that duty in the circumstances of the present case. They also accepted that they required to have their account of expenses taxed by the Auditor of Court before they could seek to obtain any decree based on that account. They now aver in terms of the Minute of Amendment that they are in the process of having this done. The Minute of Amendment was not opposed by the defenders, for whom the first defender appeared personally on his own behalf and also as representing the second defender.

[3] In these circumstances the pursuers' counsel argued that several of the defenders' averments lacked sufficient specification, and should not now be admitted to probation. The pursuers had raised an action on the instructions of the defenders and while there had been no specific agreement as to what fee should be charged and when they should be paid, it was clearly an implied condition of the contract that the fees charged would be reasonable and that they would be payable within a reasonable period of time. Counsel for the pursuers submitted that the defenders have expressed dissatisfaction with only part of the work done by the pursuers in respect of the defenders' claim. At pages 6D-E and 7A-B the defenders question the expenses of what happened at two debates during the course of the progress of the case, and also query whether the various Minutes of Amendment that were lodged were necessary. No criticism is made by the defenders on any other aspect of the case. Further, counsel submitted that the mere narrative that debates and Minutes of Amendment were required in the cause of the action raised by them on the defenders' behalf did not necessarily demonstrate that the pursuers had been guilty of negligence. In any event there was no specification of what such negligence might consist of. Secondly, counsel submitted that the defenders had not made it clear whether their claim that the pursuers would keep them advised about the cost of the case at the outset and during its currency was an express or an implied condition of the contract. Counsel claimed that he was entitled to notice of this; he also indicated that the defenders' use of the phrase "potential expense" in Answer 2 was unsatisfactory. Finally, counsel submitted that the averment at the top of page 8 of the Closed Record to the effect that the pursuers would only charge the defenders for expenses necessarily and reasonably incurred was unclear and inspecific. Some expense might be reasonable but not strictly necessary. Again, the pursuers were entitled to specification in respect of these matters. In all the circumstances, counsel suggested that there should be substantial deletions from the second part of Answer 2 and further that the penultimate sentence in Answer 3 should also be deleted together with the first plea-in-law for the defenders.

[4] In response Mr Stirton explained that throughout they had given full explanations to the pursuers at all times about the nature and detail of their case, but that they had constantly to give further information, usually of a minor nature, to allow adjustment and amendment. They had been seen by five different solicitors in the pursuers' firm throughout the course of the case and they required to repeat the entire history of the action on each occasion. One of the solicitors left for New Zealand and the file concerning the case was lost. They had been advised very late in the day that the final bill in the case would be only £15,000. Shortly thereafter they were presented with a bill of £30,000, which was subsequently reduced to £26,000 and then to £19,000. The bill now appears to be £20,000. Further, the defenders required to pay £5,600 in respect of a warrant which apparently had been obtained by their opponents in the Sheriff Court case but about which they themselves had no knowledge. After time to consider their position, the defenders however declined an opportunity to amend their pleadings.

[5] While the defenders undoubtedly feel that they have a genuine and serious grievance against the pursuers, on a strict view of their pleadings some of the averments are unfortunately not appropriate in their present form for enquiry. There can be little doubt that in the circumstances some of the defenders' averments lack sufficient specification. In particular their averments in Answer 2 concerning the alleged defects in the initial writ, the debates and the consequential Minutes of Amendment, while containing a suggestion of negligence on the part of the pursuers, do not go nearly far enough to justify a substantive defence. It appears, as indicated above, that the defenders' complaint in fact refers only part of the work done by the pursuers and there is no connection between those averments and any loss that may flow from them and the first plea-in-law for the defenders at page 9 of the Closed Record. Similarly, the pursuers' purported failure to advise the defenders of the cost of the action, or to the possible expense to fees and expenses, is not linked to a conclusion which would affect the pursuers' entitlement to recover their costs.

[6] However the defenders are unquestionably correct in their averment that the pursuers have not subjected their accounts to taxation. It is a well established practice in the Sheriff Court, that a solicitor's account cannot be the basis of an action for recovery until it has been taxed by the Auditor of Court. It is extremely curious that the present action has been raised before that had been done. Accordingly, the averments which relate to the true measures of the account which the defenders must pay should remain in place. Realistically, the only remedy which the defenders envisaged that they wished at this time, namely to question the extent of the account with which they had been presented, lies in the diet of taxation of the account which the pursuers indicated would now take place and to which of course the defenders must be invited. However, the other averments relating to what purports to be a substantive defence in the action must be deleted at this stage. Accordingly, I will delete the sixth, seventh, eighth, ninth, tenth and the penultimate sentence in Answer 2; further, in Answer 3 the third sentence falls to the excluded, as does the defenders' first plea-in-law. Thereafter I will allow parties a proof before answer of their averments. I have reserved the question of expenses.