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Fiona Drouet and others against BTO Solicitors LLP (Court of Session)
Summary of Opinion — Judge Cubie
Factual and Procedural Background
The Plaintiffs sued Company A for admitted negligence: Company A failed to lodge a summons for calling, which rendered an earlier action against the Defendant time-barred. Company A accepted negligence but denied that any Plaintiff sustained loss. The Plaintiffs sought the court's discretion to allow their action to proceed; an earlier Lord Ordinary decision refused to allow most of the claims to proceed and granted decree of absolvitor except in respect of a single limited capacity claim. The Lord Ordinary also awarded expenses in favour of the Defendant, which have been taxed and enforcement has been pursued. The Plaintiffs seek summary recovery from Company A of the expenses they now face and of fees incurred to their own advisers by proposing a minute of amendment adding two joint conclusions for payment by Company A. Company A opposes the amendment as incompetent and/or prescribed. Judge Cubie heard submissions and delivered the opinion summarised below.
Legal Issues Presented
- Whether a minute of amendment adding joint conclusions (a single conclusion for multiple Plaintiffs) is competent where the asserted loss is said to be indivisible or where Plaintiffs are jointly and severally liable.
- Whether the proposed amendment is barred by prescription (time-barred) because it would, the defenders argue, found a claim owed to the Plaintiffs qua a group rather than as individuals.
Arguments of the Parties
Plaintiffs' Arguments
- The amendment clarifies the dispute and introduces no new facts of which Company A is unaware; it is essentially a reformulation of part of the damages case.
- Multiple Plaintiffs may validly sue in one action and, depending on circumstances, may conclude jointly for an indivisible remedy (examples include co-owners or contracting parties with an indivisible interest).
- The sums sought (expenses awarded against the Plaintiffs as a group and their own advisers' fees) are indivisible and jointly and severally owed; apportionment is impossible until payment, so a joint conclusion is necessary and appropriate.
- The amendment does not alter the underlying obligation relied upon and therefore does not engage prescription; the obligation to make reparation remains the same.
Company A's Arguments
- The Plaintiffs are six individuals; each claim requires an individual, separate conclusion for damages because damages require individual assessment.
- Authorities (including MacPhail and cases cited) show that where multiple pursuers sue, they must normally claim separate sums in separate conclusions; Tayside Contracts is distinguishable because it rested on statutory and contractual arrangements allowing a joint entity to sue as one.
- The proposed joint conclusions would have Plaintiffs suing in a different capacity (as a group) from their existing pleadings; any right to sue qua group has prescribed.
- The amendment is therefore incompetent under Rule of Court 24.1 and also fails because it seeks to introduce a prescribed obligation.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Drouet v Milligan [2024] CSOH 32 | Earlier Lord Ordinary decision refusing most claims to proceed and commenting on the defenders' negligence. | Recorded as background: the earlier decision led to an award of expenses against the Plaintiffs which prompted the present amendment request. |
| Tayside Contracts v Geddes 2014 SLT 764 | Authority for a collective pursuer (a joint committee formed under statute) suing for a single sum where statutory and contractual arrangements supported a single-entity claim. | Held to show that in limited circumstances a single conclusion for a group can be competent; not confined to statutory bodies but indicative that joint claims may be apt where there is unity. |
| McNeil v NCB 1966 SC 72 | Principle that a tender of a single lump sum to multiple pursuers with separate claims is not an effective tender unless apportioned. | Cited by Company A on tender issues; court treated tender authorities as addressing tender matching conclusions and not decisive against a joint conclusion for an indivisible loss. |
| McGillivray v Davidson 1993 SLT 693 | Consideration of when conclusions against several defenders jointly and severally are competent and whether separate pursuers require separate conclusions. | Noted that the decision did not rule out pursuers suing jointly where appropriate; used to show context of prior authorities. |
| Boulting v Elias 1990 SC 135 | Authority that where pursuers' claims arise from separate contracts or separate grounds, conjoining is incompetent. | Distinguished: court found Boulting concerned discrete, separate contracts and so not applicable where loss is indivisible and liability is joint and several. |
| Armstrong v Paterson Bros 1935 SC 464 | Authority that multiple pursuers may join where claims arise from same facts, each concluding for a separate sum. | Accepted as established rule but court examined whether that vehicle bars a single conclusion where loss is indivisible. |
| Buchan v Thomson 1976 SLT 42 | Observation that although claims arise from one wrong, each pursuer normally has a separate conclusion; procedural convenience does not change separability. | Cited and read as not excluding the possibility of an indivisible claim by multiple pursuers in one conclusion. |
| Flanagan v Dempster Moore & Co 1928 SC 308 | Authority on tendering a single sum to multiple pursuers and the need for appropriation to individual pursuers. | Considered in relation to tender arguments; court treated tender authorities as not determinative of competence where loss is indivisible. |
| Lawson v Leith and Newcastle Steam Packet Company (1850) 13 D 175 | Principles concerning part-owners' title to sue and exceptions grounded in justice and common sense. | Used to support the view that procedural rules should yield to justice where rigid application would produce injustice. |
| Harkes v Mowat (1862) 24 D 701 | Authority that combined claims require separate conclusions when each pursuer's injury is separate. | Cited for the proposition that separable individual injuries require separate conclusions; court noted this does not address indivisible losses. |
| Ferguson v McLennan Salmon Co Limited 1990 SC 45 | Authority endorsing pragmatic/flexible approach to procedural matters (tender and amendment context). | Relied on for the proposition that procedural mechanisms should be flexible and pragmatic in context. |
| McNeil v NCB (repeated) / Flanagan v Dempster Moore & Co (repeated) | As above (tender rules). | As above: tender authorities considered but not treated as absolute bars to joint conclusion for indivisible loss. |
Court's Reasoning and Analysis
Judge Cubie analysed authority and textbooks, acknowledging the established rule that multiple pursuers typically claim separate sums where individual injuries are distinct. He examined authorities on tender, joint actions, co-ownership and statutory joint entities. The court identified the critical question as whether the loss claimed is indivisible such that a single joint conclusion is the appropriate procedural vehicle. The court concluded that where Plaintiffs face joint and several liability (as the earlier award against them had grouped them) and the loss for which recovery is sought is indivisible or inseparable, a joint conclusion may be competent. The court rejected Company A's strict reliance on authorities requiring separate conclusions where the losses are discrete, distinguishing cases founded on separate contracts or separable injuries. On prescription, the court held that the amendment did not change the nature of the underlying obligation (the defenders' breach to lodge the summons) and that the original proceedings constituted a relevant claim interrupting prescription; therefore the amendment did not introduce a new, prescribed obligation. The court exercised its discretionary power to allow the amendment, finding the minute of amendment both competent and relevant, while reserving certain expenses.
Holding and Implications
The court allowed the minute of amendment. The closed record was to be opened and amended in terms of the minute of amendment and answers. The Plaintiffs conceded expenses of the amendment procedure but not expenses relating to the competency argument; those expenses are reserved for the time being.
Implications: The immediate effect is that the Plaintiffs may pursue two joint conclusions for sums said to be due as a group (expenses awarded against them and advisers' fees) against Company A. The opinion recognises limited circumstances in which a joint conclusion is competent where the loss is indivisible; the court exercised discretion in favour of amendment and did not treat the amendment as barred by prescription. The decision does not purport to create a general rule changing established principles; it applies existing authorities to the particular facts.
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