Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN & BORDERS   Case Number: A1101/09
	Judgment by   SHERIFF PRINCIPAL MHAIRI M STEPHEN   In the cause   FRANCES DOUGLAS THOMPSON residing at Thatched Cottage, High Street Town, Yetham Pursuer & Appellant   against   DAVID AND STEPHANIE-ANNE HARRIS, both residing at 25 Lockharton Gardens, Edinburgh Defenders & Respondents     _______________________

 

 

 

Act: Party

Alt: Dryden, solicitor for respondents

 

 

 

 

EDINBURGH, 2 September 2011

The Sheriff Principal, having resumed consideration of the cause, refuses the appeal and adheres to the sheriff's interlocutor of 20 January 2010 complained of; finds the pursuer and appellant liable to the defenders and respondents in the expenses of the appeal; allows an account thereof to be given and remits the same, when lodged, to the Auditor of Court to tax and to report thereon.

 

(signed) Mhairi M Stephen

NOTE:

 

BACKGROUND

1. The pursuer and appellant appeals the sheriff's interlocutor pronounced following proof. The sheriff repelled the pursuer's plea-in-law and therefore her crave for payment of £7943.95. The sheriff made an award of expenses in favour of the defenders who had been successful at proof.

 

2. The action proceeded upon an oral contract between the parties which was linked to and therefore associated with the purchase by the defenders of the pursuer's former home at 25 Lockharton Gardens in Edinburgh in November 2004. The appellants' case in essence is that there was an agreement whereby the pursuer and appellant would sell her property to the defenders for £520,000. She alleges that for fiscal reasons the defenders sought to ensure that the price paid for the heritable property was just less than £500,000 which was the figure which would trigger the next level of stamp duty. Accordingly, in terms of the missives the property would be sold for £499,000 and the parties then agreed that an additional figure of £21,000 would be paid by the defenders to the pursuer.

 

3. The defenders and respondents on the other hand disputed that the figure of £21,000 had anything to do with the price of the heritable property but instead it related to fixtures and fittings and moveables relating to the property in particular there were certain light fittings and curtains amongst other things which were to be included in the sale of the property but paid for separately. The first named defender tendered a cheque for £21,000 in favour of the pursuer but post-dated to January 2005.

 

4. Subsequently the defenders stopped the cheque ostensibly when they became aware of arrestments which were to be served by the City of Edinburgh Council in respect of debts allegedly due by the pursuer to the council.

 

5. The sheriff preferred the defenders' explanation as to the formation of the oral contract and accepted that certain payments had been made by the defenders to the pursuer including a sum of £3,275.

 

6. The sheriff found that after allowance had been made for the payments by the defenders to the pursuer there was a sum of £3,008.49 due by the defenders to the pursuer. However, he also found that the pursuer had breached part of her obligations under the contract and had failed to leave certain light fittings and curtains which had formed part of the agreement. By setting the cost of replacing these items against the balance due to the pursuer he found that there were no sums due to the pursuer by the defenders. He also found that the pursuer was not due any money to the defenders and dismissed the counterclaim.

 

APPEAL

7. The pursuer and appellant appeals the sheriff's interlocutor. The appellant's grounds of appeal are No 13 of process. The grounds of appeal are eight in number. Prior to the appeal hearing the appellant lodged additional grounds of appeal. These had been intimated to the respondents who took no objection to the lodging of additional grounds of appeal albeit late.

 

8. The appellant in person addressed me on her grounds of appeal.

 

9. When the appellant was informed that both defenders were entitled to be present in court during the proof the appellant wisely did not insist on the first ground of appeal.

 

10. The appellant's second ground of appeal related to the disputed payment of £3,275 which the defenders say was paid in April 2005. The appellant complained of the lack of supporting evidence. Apart from the pass book produced by the defenders they failed to produce further proof from the building society in support of the payment to the appellant.

 

11. The appellant maintains that she obtained information from the building society to the effect that all documentary evidence should still be available and had the defenders wished to do so this information could have been made available to the court by the defenders.

 

12. The sheriff should not have accepted the defenders' evidence given that further primary evidence was available but not produced.

 

13. The third point related to the cheque for £21,000 which was tendered by the defenders to the appellant and was post-dated but was stopped on 10 January 2005.

 

14. The appellant's point on this matter relates to the statement in the sheriff's note at paragraph 9 which referred to the council serving arrestments on inter alia the defenders before the cheque could be honoured. The appellant was of the view that the cheque had been stopped deliberately by the defenders and the service of the arrestment post-dated the defenders stopping the cheque and that the service of the arrestments had nothing whatsoever to do with the decision on the part of the defenders to stop the cheque in her favour. The sheriff was therefore wrong in making the statement he did.

 

15. The next point made by the appellant (fourth ground of appeal) related to the sheriff's calculations in paragraphs 15 to 18 of the note. This in the view of the appellant disclosed flawed and muddled thinking on the part of the sheriff.

 

16. The appellant fairly conceded that she ought to have been better prepared for proof, however, there was a reason why she was not in a position to present her case at proof as well as she might. The reason was that her father had died shortly before the date fixed for proof. She would have challenged the valuations provided by the defenders in respect of the replacement of the curtains, light fittings and lamp shades which were the subject of the dispute.

 

17. She also complained that the defenders had not made their position clear on the matter of these fixtures and fittings and she was effectively ambushed by the defenders at proof. With the benefit of hindsight she regretted having entered into any oral agreement with the defenders who had, prior to this property transaction, been friends and neighbours in Lockharton Gardens. She accepted that solicitors had been involved with regard to the formal missives and conveyancing. She could not explain why there was no written contract or correspondence about the disputed £21,000. She disputed that there was a balance of £3,008.49. This is significantly due to the dispute over the payment of £3,275 which she continues to assert was simply never paid.

 

18. The fifth ground of appeal related to a tender which apparently the defenders had lodged in the process. The appellant sought to draw the inference from the lodging of a tender that the defenders must accept that they are liable to make payment to her of all or part of the sum sued for.

 

19. Point six relates to a factual inaccuracy which indeed the respondents agree with.

 

20. Point seven relates to a further inaccuracy in the sheriff's note. The sum sued for was £7,943.95 exclusive of interest. Again, the respondents accepted that the manner in which the sheriff had expressed himself could be misleading but there was no dispute whatsoever about the amount craved.

 

21. The final ground of appeal as originally lodged relates to the failure on the part of the sheriff to make reference to an earlier and completely different case involving an action of furthcoming following service of arrestments on the pursuer and appellant and also on the defenders relating to alleged debts of the appellant. The appellant was of the view that the sheriff ought to have made it clear in his judgment that there was a decree of the court ordaining her to be paid the balance of the arrested funds.

 

22. Turning to the additional or supplementary grounds of appeal numbered 9 to 14. The appellant complains under grounds 9 and 10 that the sheriff purports to make findings in fact which are indeed opinion as there was no basis on the evidence on which he could make the findings he made, specifically findings in fact 2 and 3. In particular with regard to finding 3 the appellant disputes that this matter was sufficiently proved. She disputes specifically that there was proof of payment of £3,275 and that the sheriff should not have relied upon the scant proof offered by the defenders when there was better information available which they chose not to produce. This replicates the argument advanced by the appellant in her second ground of appeal.

 

23. Furthermore, the appellant argued that she had no proper notice of the defenders' claims with regard to the oral contract and the fixtures and fittings which they complained had been removed from the property. Had she known that this was to be the line of defence she could have provided evidence to the effect that the fittings were neither original nor unique to the property and could have readily been replaced. In any event, it is the appellant's position that the agreement relating to £21,000 did not encompass fixtures and fittings but was in reality part of the payment for heritable property the defenders simply wished to avoid stamp duty by artificially bringing the agreed purchase price below the stamp duty limit of £500,000 in order to save themselves money and avoid tax.

 

24. Turning to the ground of appeal no.11. The appellant sought to argue that she had been denied a fair hearing. The sheriff ought not to have decided the matter on credibility and in particular ought not to have allowed the solicitor for the defenders to denigrate her in public civil court proceedings. In particular she referred to that part of the transcript dealing with the defenders' solicitor's submissions on the issue of the arrestment of monies in the hands of the appellant and in the hands of the defenders with regard to alleged debts due by the appellant to the council which in fact were wrongly stated and that she, the appellant, had been vindicated in the end of the day by the court in the action relating to furthcoming. The court should not have allowed the solicitor for the defenders to denigrate the pursuer in the manner which he did. In particular the appellant referred me to page 170 of the transcript when Mr Wright for the defenders referred to the pursuer's evidence in the context of her being somebody who is involved "in not payment council tax and parking fines to a significant level". The submission for the defenders proceeded "now I know that these are entirely secondary to what we have today but it represents somebody who takes an unusual line on things and I think you can read into that about her credibility and therefore her reliability about this oral contract that we were entering and I think that this is quite important because in contract law we say there has been a misrepresentation by the pursuer that through being negligent or wilful she was never intending on letting them have all these items."

 

25. It was the appellant's submission that by allowing these comments the sheriff breached his duty to ensure that the proof was fair to both parties and therefore breached Article 8 of the European Convention of Human Rights. He should have prevented the defenders' solicitor denigrating and criticising her in the manner in which he did.

 

26. The twelfth appeal point related again to the transcript and the appellant pointed out by reference to the transcript that the sheriff had made no fewer than 65 interruptions. She considered that the sheriff had been brusque towards her and polite to and accommodating towards the defenders' solicitor. She began almost to infer that the sheriff was biased but did not quite say so. The appellant was not accorded the same degree of respect that the defenders' solicitor had been. Again, she considered that this flouted the requirement to ensure a fair trial or proof.

 

27. The points raised in ground of appeal 13 has substantially been dealt with under the previous two grounds.

 

28. The appeal point 14 was essentially departed from as the appellant accepted that there could not be another proof or re-hearing of the case. She expressed her grave disappointment at the outcome and that she did not feel that the court had delivered truth and justice.

 

29. Despite the appellant's submission made under point 11 above relating to her Articles 6 and 8 rights under the European Convention of Human Rights she concluded her submissions by urging me to allow the appeal and overturn the sheriff's judgment as she considered the defenders to be "liars, cheats and conmen" who had effectively pulled the wool over the sheriff's eyes at proof.

 

30. Following a discussion on the matter of expenses the pursuer and appellant appeared to understand and accept the proposition that normally in court proceedings expenses follow success and that the successful party to an action (including an appeal) would normally be entitled to an award of expenses by the court.

 

RESPONDENTS' SUBMISSIONS

31 Ms Dryden for the respondents replied briefly to the points raised on appeal by the appellant.

 

32. Ms Dryden referred to Thomson v Kvaerner Govan Ltd 2004 SLT 24. That case deals with the appeal court's function compared with that of the sheriff or judge who hears the evidence at first instance.

 

33. I was reminded of course that the onus of proving a case lies with the pursuer. She raised proceedings against the defenders and cannot now complain of the difficulties which she encountered at proof. She had solicitors acting on her behalf with regard to the conveyancing transaction in November 2004 but chose to enter into an oral agreement with the defenders with regard to the disputed sum of £21,000. The difficulties which have arisen have stemmed from the failure to commit this agreement to writing.

 

34. Ms Dryden effectively conceded that the criticism made by the appellant in grounds of appeal 6 and 7 was correct however these were minor errors which were of no effect. They had no impact whatsoever on the sheriff's judgment.

 

35. Turning to the matter of the tender I was referred to Macphail - Sheriff Court Practice 14.52 which deals with the existence of a tender which was not accepted and refers to the well established principle that the tender must not be brought to the notice of the sheriff except at the stage when he is dealing with expenses.

 

36. Turning to the eighth ground of appeal relied upon by the appellant the respondents submitted that no account should have been taken by the sheriff of the action of furthcoming in which the City of Edinburgh Council were the pursuers, the defenders were the arrestees and the pursuer was the common debtor. This is a separate action and a separate decree which is separately enforceable.

 

37. The respondents made further submissions relating to the additional grounds of appeal. Articles 6 and 8 of the European Convention of Human Rights mentioned by the appellant are referred to for their terms but there had been no breach of either article and in any event, Article 6 did not apply in the context of the hearing of evidence at proof especially as the appellant was pursuing the action.

 

38. Furthermore, I was clearly reminded that the sheriff came under an obligation to make findings in fact following hearing evidence at proof. These findings in fact are based on the evidence and I was again referred to the case of Thomson v Kvaerner and the advantage which the sheriff at first instance has with regard to the evidence he hears.

 

39. Finally, I was urged to dismiss the appeal and award expenses in favour of the respondents. There had been no challenge to the sheriff's interlocutor based on a point of law. The sheriff had been entitled to make the findings he did on the evidence available at proof.

 

40. Finally, I was urged to award expenses in favour of the defenders and respondents. It was important that the issue of expenses was dealt with at the same time as my decision on the appeal given that there had already been significant delay due to the appellant seeking transcripts of the evidence. The defenders were understandably keen to have matters resolved without further delay.

 

APPELLANT'S REPLY

41. In reply the appellant addressed some of the matters raised by the respondents. She agreed that the proof could not be re-heard despite her complaint that she had been prevented from presenting her case in the best manner due to personal circumstances. She was critical of the sheriff who she considered ought to have been more accommodating to her as a party litigant.

 

DECISION

42. The grounds of appeal in the main relate to issues of accuracy; arithmetic and therefore fact.

 

43. In essence the appeal points did not raise issues of law instead the appellant sought to persuade me to review the sheriff's decision on issues of fact. In particular, the appellant suggests that the oral contract related to part of the price agreed for the heritable subjects rather than fixtures and fittings.

 

44. Furthermore, the appellant suggested that the sheriff had no basis on which to hold that the defenders had paid £3,275 to the appellant. Therefore, it follows that the sheriff was wrong to hold that no monies were due by the respondents. These are indeed the issues identified by the sheriff in paragraph 2 of his note.

 

45. Clearly, it is for the appellant to show why the sheriff erred in law in pronouncing the interlocutor he did. The sheriff has explained his findings in the note attached to the interlocutor with findings in fact and findings in fact and law.

 

46. It is evident that the sheriff required to evaluate carefully the evidence given by the pursuer and appellant on the one hand and the evidence given by the defenders on the other. The main reason for this is that the contract was an oral contract and for some inexplicable reason had not been committed to writing despite both parties having solicitors acting for them with regard to the conveyancing of the property at 25 Lockharton Gardens in Edinburgh. It did not appear to be disputed that the missives in respect of the purchase/sale of that property were concluded on the basis that the respondents would pay £499,000 to the appellant and in return for that would be granted a conveyance of the property. That indeed happened and the respondents moved into the property at 25 Lockharton Gardens having paid over £499,000.

 

47. On the first issue the sheriff deals with the matter at page 5 of his judgment paragraph 7 where he states:-

"I accept the evidence of the defenders as credible and reliable. I thought they were honest in their evidence. I am satisfied that the sum of £21,000 was in respect of moveable items. It has the ring of truth about it that this was so. It would be surprising if a sum in addition to the price in the missives or disposition was not attributable to something such as moveable items to be left in the house. The pursuer's evidence did not accord with what is a common occurrence."

 

48. The appellant had suggested that the decision to split the price agreed for the property was in effect a tax dodge by the respondents.

 

49. The sheriff has dealt with that argument and weighs up the competing arguments at paragraph 6 of his judgment. In particular, he states that the defenders had always averred that the sum of £21,000 was in respect of the agreement for moveable items to be left in the property by the pursuer. It is noted that the pursuer/appellant did not respond to that averment in her own pleadings. No evidence was led regarding stamp duty rates at the relevant time. The defenders had lodged a valuation of the property which valuation was not challenged by the pursuer. Furthermore, the appellant in her pleadings did not suggest that the agreed purchase price was £520,000 or indeed that the valuation of the property was in that region.

 

50. The next critical issue for the sheriff was the disputed payment of £3,275. The defenders gave evidence regarding this and referred to a Bradford & Bingley Savings Account pass book from the Morningside Branch which had been lodged in process. This showed a withdrawal of £3,275 on 2 April 2005. The sheriff accepted that evidence together with the evidence of the first named defender that he had personally handed the cheque to the pursuer. Clearly the sheriff accepted that evidence. He did so against the background of the appellant suggesting that the building society could indeed have produced records tracing the payment to the appellant but that the respondents had not done so. The sheriff deals with this in his note from paragraphs 9 to 13.

 

51. The third point at issue relates to the matter of whether there are any sums due by the respondents to the appellant. Indeed the sheriff finds that there is a balance of £3,008.49 due of the agreed sum of £21,000. However, the sheriff goes on to find that the appellant was in breach of this oral contract in so far as the pursuer removed from the property certain of the items which had formed part of the contract namely, a central light fitting, two sets of curtains and lampshades. The respondents produced estimates for replacing the light fitting, lampshades and curtains and modestly assessed they came to a total of £3,801. Although that figure more than cancels out any sums due by the respondents to the appellant it was conceded that the respondents would not insist on their counterclaim which might, if successful, have resulted in a balancing figure of £801 due by the appellant to the respondents. For these reasons the sheriff took the view that there were no monies due by either party to the other. On this issue the sheriff had ample evidence in the form of estimates and vouching lodged by the respondents and the evidence of the respondents themselves upon which to make his finding.

 

52. The appellant, therefore, suggests that the sheriff was not entitled to make the findings which he did in respect of the other issues and in particular he had no basis upon which to accept the evidence of the respondents. Normally on appeal the appellate court is slow to interfere with the weight which the sheriff at first instance attached to the evidence of the witnesses whom the sheriff had the advantage of both seeing and hearing. The appellant would have to show that the sheriff was wrong in accepting the evidence of the respondents so as to suggest that the sheriff had no basis upon which to make the findings which he did.

 

53. This is not a case where the evidence of the witnesses contradicts any incontrovertible agreed or written evidence. The dispute centred on an oral contract between the parties which, for whatever reason, the parties had not committed to writing. In these circumstances it is entirely understandable that the evidence relating to the contract will come from witnesses who were parties to the contract or who have some involvement in the formation of that contract. Clearly, the sheriff has had regard to all the evidence before him, including documentary evidence, and it seems to me quite wrong to seek to interfere with the sheriff's assessment of the evidence in coming to his decision.

 

54. I was referred in the course of submissions to the case of Thomson v Kvaerner and I would refer in particular to the dicta of Lord Hope at page 27:-

[16] The rule which defines the proper approach of an appellate court to a decision on fact by the court of first instance is so familiar that it would hardly be necessary to repeat it, were it not for the fact that it appears in this case to have been overlooked. In Clarke v Edinburgh and District Tramways Co, at 1919 SC (HL), p 37; 1919 1 SLT, p 248, Lord Shaw of Dunfermline said that the duty of the appellate court, not having the privileges, sometimes broad and sometimes subtle, of the judge who heard and tried the case, was to ask itself whether it was in a position to come to a clear conclusion that the judge who had these privileges was plainly wrong. The words "plainly wrong" were picked up and repeated by Lord Macmillan in Thomas v Thomas at 1947 SC (HL), pp 59-60; 1948 SLT, p 8 when he said:

"So far as the case stands on paper it not infrequently happens that a decision either way may seem equally open. When this is so, and it may be said of the present case, then the decision of the trial judge, who has enjoyed the advantages not available to the appellate court, becomes of profound importance and ought not to be disturbed. This is not an abrogation of the powers of a court of appeal on questions of fact. The judgment of the trial judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved, or otherwise to have gone plainly wrong.

"...If the case on the printed evidence leaves the facts in balance, as it may be fairly said to do, then the rule enunciated in this House applies and brings the balance down on the side of the trial judge."

 

55. Accordingly, the sheriff having seen and heard the witnesses was required to assess their evidence in order to decide upon the issues in dispute. The sheriff was entitled to make the decision which he did preferring the evidence of the respondents to that given by the appellant on whom the burden of proof rested. It cannot possibly be said that the sheriff was wrong in reaching the view which he did and it falls from that that the appeal should be refused in so far as it relates to the facts which the sheriff found proved.

 

56. The matter does not end there. In so far as it can be decerned there may be issues of law which have emerged. In particular, the appellant refers to the sheriff's failure to mention in his judgment (a) the tender lodged on behalf of the defenders and (b) a separate court action for furthcoming raised by the City of Edinburgh Council against the parties. In that action the pursuer and appellant was the common debtor and the respondents were the arrestees.

 

57. It has been observed in Macphail on Sheriff Court Practice (14-52) that it is indeed a well established principle that the tender must not be brought to the notice of the sheriff or judge except when the matter of expenses requires to be adjudicated upon. The reason for having this principle is in order to negate any suggestion that the sheriff or judge, being aware of the contents of the tender, might allow this to affect his decision on the merits.

 

58. The sheriff was entitled to have no regard to the action of furthcoming. I am not aware to what extent it was referred to in evidence. The transcript of evidence is available but I was not referred to passages relating to the action of furthcoming. There was reference made to the service of the arrestment. The action of furthcoming is a separate action and the decree in that action is separately enforceable by whichever party has an interest to do so. The sheriff accordingly, was perfectly entitled to have no regard to that in his judgment.

 

59. The residual issue which could be considered a question of law relates to the suggestion by the appellant that she was denied a fair hearing firstly, due to the sheriff allowing the solicitor for the respondents to make submissions relating to her credibility and linking these to her alleged debts to the council and the second being due to the sheriff's repeated interruptions of the appellant's evidence and submissions.

 

60. The first objection relating to the respondents' submissions is without foundation. The matter in dispute relating as it did to an oral contract relied significantly on the evidence of the parties and the view which the sheriff took of these parties. The respondents' solicitor was perfectly entitled to make submissions relating to the appellant, the manner in which she gave evidence and her background so far as that was known and relevant. It is a matter of fact that arrestments were served in respect of debts allegedly due by the appellant to the council. Arrestments were also served on the funds in the hands of the defenders allegedly due to the appellant. There can be no doubt that as a matter of fact that this is what had happened and indeed this was referred to at proof and was again referred to in submissions on appeal. The agent for the respondents was entitled to make the submission he did to the court. They are based on fact even though the appellant now considers that she is vindicated in her position by holding a decree in an action of furthcoming in respect of certain of the funds arrested.

 

61. It is worthy of note that the appellant, having submitted to me that it was wrong for the respondents' agent to be allowed to make comment as to the appellant's credibility then proceeded to make highly critical and indeed offensive comments about the respondents referring to them as liars, cheats and conmen. Clearly, two wrongs do not make a right but the point made by the appellant is without foundation.

 

62. On the matter of the sheriff interrupting her submissions I was directed to parts of the transcript where it is abundantly clear that the sheriff did interrupt the appellant and further on one occasion told her to be quiet, apparently in a peremptory tone.

 

63. It is inappropriate to look at selections from the transcript without looking at the entire context. On reading the appropriate parts of the transcript it appeared to me that the sheriff was in part endeavouring to assist the appellant, who was a party litigant, focus on the points which she required to address the court on. Secondly, the sheriff required to interrupt the appellant when she was straying off the point on to matters which were peripheral or simply irrelevant to the dispute. It is recognised that party litigants who become involved in legal proceedings do require assistance and often require assistance in focusing on the important points in their case. Often party litigants are passionate about the cause and they are very close to the dispute. It is for the benefit of the party litigant if the sheriff reminds them of the areas of dispute which require to be addressed. It is also important for the purpose of managing court time that the sheriff does not allow a party litigant to have a wide ranging and uncontrolled approach to evidence and submissions. Finally, when the sheriff told the appellant to be quiet the appellant had in effect interrupted either the sheriff or her opponent and it was perfectly proper to ask the appellant not to do so. The appellant had previously interrupted and clearly the sheriff had become impatient with her constant interruptions. It is appropriate to note that the sheriff's order complained of comes at page 168 of the transcript. Following two interruptions by the appellant during submissions by the respondents' solicitor the sheriff says "...be quiet! I'll give you an opportunity when Mr Wright has finished". The appellant was given the opportunity to reply. Accordingly, the sheriff was entitled to require the appellant to be silent and respect the right of the respondents to put their case to the sheriff uninterrupted. The sheriff's behaviour is beyond reproach. It is however, a feature of some party litigant's behaviour that they respond to controversy with a viva voce intrusion into the opponent's argument. The sheriff requires to control and manage proceedings in his court. It is again worthy of comment that when hearing the appeal the appellant interrupted her opponent on numerous occasions during her submissions and indeed interrupted me. Accordingly, it is my view that this is not a good appeal point. The sheriff showed no bias. The sheriff is an experienced sheriff and it appeared to me that he was doing his best to constrain the appellant in her own interests to focus on the areas of dispute and in effect was endeavouring to assist her. The sheriff produced a well reasoned judgment to which no challenge to his application of the law has been made.

 

64. In my view this appeal falls to be dismissed. The other points of appeal raised by the appellant and to an extent conceded by the respondents referred to matters of arithmetic and accuracy and in effect nothing turned on these inaccuracies and the result was that they had no effect on the outcome.

 

EXPENSES

65. Having refused the appeal it follows that the appellant having been unsuccessful should bear the expenses of the appeal and I will order that the appellant will be liable to the respondents in expenses of the appeal.

 

(signed) Mhairi M Stephen