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IAN JACK & AUDREY JACK AGAINST CROWN PARKS (SEATON) LTD


Submitted: 30 October 2015

SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT FORFAR

[2016] SC FOR 73

A41/12

JUDGMENT OF SHERIFF S G COLLINS, QC

 

In the cause

 

IAN JACK & AUDREY JACK

 

Pursuers

 

Against

 

 

CROWN PARKS (SEATON) LTD

 

Defenders

 

Act:  McNairney, Advocate

Alt:  Kemp

 

Forfar, 30 October 2015

The Sheriff, having resumed consideration of the cause:

(i)         Allows the Minute of Amendment for the defenders to be received under deletion of paragraphs 1, 4, 8  and 10 thereof; 

(ii)        Allows the pursuers two weeks from today’s date to lodge answers to the Minute of Amendment, if so advised, and allows both parties a further two weeks thereafter to adjust;

(iii)       Sustains the first plea in law for the pursuers and grants decree against the defenders for payment to the pursuers of the sum of forty five thousand pounds sterling (£45,000) with interest thereon at the rate of eight per centum per annum from 22 July 2011 until payment;

(iv)      Refuses to admit the following averments to probation:

a.   In Answer 3, page 6, from the beginning of the sentence beginning with the words “With reference to the pursuers’ averments…” in line 139 to the end of the sentence ending “…agreed to specification of this mobile home.” In line 165 on page 7;

b.   In Answer 4, page 9, the entire sentence beginning with the words “Accordingly, the seller was entitled…” in lines 229 and 230;

c.   In Answer 4, page 9, the entire sentence beginning with the words “The defenders are therefore entitled…” in lines 232 to 234;

d.   In Answer 6, page 10, the entire sentence beginning with the words “The sums due to be paid by the defender…” in lines 264 to 267;

(v)       Finds the defenders liable to the pursuers in the expenses of the debate on 6 August 2015 and certifies the cause as suitable for the employment of counsel.

(vi)      Continues the cause to a procedural hearing on a date to be afterwards fixed, but no earlier than five weeks from today’s date, for consideration of whether to allow the record to be opened up and amended in terms of the Minute of Amendment and Answers, and for determination of further procedure;

(vii)     Reserves questions of expenses arising from the Minute of Amendment meantime.

And decerns.

 

NOTE:

[1]        This action called before me at a diet of debate on 6 August 2015.  The defenders’ agent offered a Minute of Amendment which he moved to have received.  This motion was opposed in part by counsel for the pursuers who submitted that in any event the Minute did not cure certain defects in the defenders’ case, as identified in the pursuers’ Rule 22 Note.   Having heard argument I reserved judgment.

 

The current pleadings

[2]        The pursuers aver that on 22 July 2011 they agreed to purchase from the defenders a Chatsworth Silver Static two bedroom Park Home (“the Chatsworth Unit”) at a price of £81,000, and that towards that price they paid a deposit of £2,000.   This is reflected in the terms of a Sales Order Form signed by the pursuers on 22 July 2011, incorporated into their pleadings brevitatis causa, and lodged in their first inventory of productions.  

[3]        The pursuers further aver that part of the price of the Chatsworth Unit would be satisfied by the defenders purchasing from them a Fiat Ducato motorhome (“the Fiat motorhome”) at a price of £45,000.  Again they refer to the Sales Order Form which refers to the motorhome under the heading “part exchange” and which specifies the figure of £45,000 as a “trade in allowance”, thus leaving a “balance due” on the purchase of the Chatsworth Unit of £34,000.  

[4]        It is common ground that the pursuers delivered the Fiat motorhome to the defenders, who accepted delivery and then sold it to a third party on 1 August 2011 for £13,500.  However the contract for the sale of the Chatsworth Unit did not then proceed to completion. 

[5]        The pursuers aver that they cancelled the contract by letter of 1 October 2011 due to the defenders’ failure to deliver the Chatsworth Unit for occupation by that time.  They aver that they were entitled to do this under the contract, as set out in paragraph 4 of the terms and conditions in the Sales Order Form.  This provides that if the subject of the sale was not “delivered, installed and connected to the relevant services within 60 days after the anticipated date of occupation” the purchaser would be entitled to cancel the contract and to return of the deposit “less 10% administration charge”.   The pursuers accept that the “anticipated date of occupation” is stated in the Sales Order Form of 22 July 2011 as “TBA”, but they offer to prove that the defenders confirmed verbally that it was 1 August 2011, and thus that 60 days had indeed passed prior to them cancelling the contract on 1 October 2011. 

[6]        In these circumstances the pursuers crave two orders for payment.  In the first place they crave the sum of £1,800, being their deposit of £2,000 less 10%.  This claim is founded on paragraph 4 of the terms and conditions referred to, and is therefore dependant on them establishing their entitlement to cancel the contract in term of this paragraph.  In the second place the pursuers crave payment of £45,000, being the price which they aver was agreed for the purchase from them of the Fiat motorhome.   This claim is founded on the proposition that this contract is a contract of sale separate and severable from the contract for the purchase of the Chatsworth Unit, and thus is not dependent on establishing entitlement to cancel that contract.  It is made in circumstances where it is accepted that the defenders, having sold the motorhome to a third party, cannot now return it. 

[7]        In answer, the defenders admit that on or about 22 July 2011 they entered into a contract with the pursuers for the purchase of the Chatsworth Unit at a price of £81,000 and that the pursuers paid a deposit of £2,000 at that time (Answer 2, page 3, lines 43 – 44, 48 – 49).   Notwithstanding this admission the defenders then make detailed averments (Answer 3, page 6) in relation to an earlier contract (in June 2011) to purchase a different unit, namely a Badminton 40 x 20 mobile home (“the Badminton Unit”) with part exchange of an Autorail Cheynne motor home (“the Autorail motorhome”).  It is averred in effect that having initially agreed to purchase the Badminton Unit the pursuers then changed their mind in favour of the Chatsworth Unit.  Emails relative to these discussions are averred to be held as incorporated but have not been produced. 

[8]        More directly the pursuers’ averment that the anticipated date of occupation for the Chatsworth Unit was agreed by the defenders to be 1 August 2011 is met by a general denial.  It is averred (Answer 3, page 7, lines 179 on) that this date was dependent entirely upon receipt of the Chatsworth Unit from the manufacturer and that the pursuers were advised of this on 22 July 2011.   It is further advised that in any event production and delivery of the Chatsworth Unit was delayed because the pursuers contacted the manufacturer on 13 and 15 September 2011 and changed the specification earlier agreed.  In these circumstances it is averred that the pursuers were not entitled to cancel the contract for purchase of the Chatsworth Unit when they did and by so doing were in material breach of contract (Answer 3, page 8, line 189).

[9]        As regards the Fiat motorhome, the defenders make a number of different averments at different points in their pleadings.  They admit that they offered to accept it “as a trade in to the value of £45,000” (Answer 2, page 3, lines 45 – 48).  They aver that that they “agreed to provide for a part exchange of £45,000 for the pursuers’ motorhome” (Answer 3, page 7, lines 158 and 159), but that this was an inflated value given “for business reasons”, and that the “trade value” and “retail value” were £25,200 and £29,850 respectively (Answer 3, page 8, lines 198, 204).  The pursuers’ averment that the defenders “agreed to purchase from the pursuers and that the pursuers agreed to sell the vehicle for the price of £45,000” is met by a general denial (Answer 5, page 9, line 237; page 10, line 256). The defenders also aver that the motorhome was “accepted by the defenders in part payment of the purchase price to be paid by the pursuers in respect of the [Chatsworth Unit]” (Answer 5, page 10, lines 254 – 255).   However they admit that the pursuers delivered the motorhome to them, that they accepted delivery of it, and that it cannot be restored to the pursuers (Answer 5, page 10, lines 250 – 252). 

[10]      It follows from the above that, in answer to the pursuers’ claim for payment of £1,800 by way of the balance of their deposit, the defenders’ position is that they are not entitled to it because the 60 day period in paragraph 4 of the terms and conditions of the Sales Order Form had not expired and they were thus not entitled to cancel the contract.  The defenders’ answer to the pursuers’ claim for payment of £45,000 in respect of the Fiat motorhome seems to be that while a value of £45,000 was placed on the vehicle in part payment for the Chatsworth Unit, there was no agreement to purchase it from the pursuers for this price, and thus they have no entitlement to be paid it.  

[11]      By an earlier Minute of Amendment the defenders introduced a counterclaim, by which they craved payment of the sum of £2,250 from the pursuers.  The basis of this claim is said to be the alleged breach of contract by the pursuers in cancelling the contract for the Chatsworth Unit (Article 1 of the Counterclaim, page 11, lines 268 – 271).   However there follow a series of averments regarding alleged losses arising from the earlier order for the Badminton Unit, delivery of which it is said that the defenders could not cancel, thus incurring transport (£4,500) and siting (£3,000) costs and sale of which had to be effected at a loss (of £12,000, on a sale of £98,000).  It is also averred that the defenders were unable to cancel delivery of the Chatsworth Unit and that transport (£3,300) and siting (£1,750) costs were incurred.  The total loss is thus said to be £26,500, but that setting off the deposit paid by the pursuers (£2,000) and “the value” of the Cheynne motorhome being £25,200 leaves a balance of loss of £2,050. 

[12]      In answer to this claim the pursuers admit that they initially contracted for the purchase of the Badminton Unit and paid a £2,000 deposit towards it, but that this contract was cancelled by agreement between the parties on or about 15 July 2011 following which the agreement to purchase the Chatsworth Unit was entered into (Cond. 3, pages 4 – 5, lines 89 – 105).  Accordingly the pursuers aver that any contract in relation to the Badminton Unit was brought to an end without further liability save for the return of the £2,000 deposit which was agreed would be applied as a deposit towards the purchase price of the Chatsworth Unit (Answer 1, page 12, lines 297 – 302).  They further aver that esto the defenders suffered loss in relation to the Badminton Unit they have failed to mitigate that loss, and make certain calls on the defenders in relation to the costs said to have been incurred in relation to its sale, siting and connection. 

 

The Minute of Amendment

[13]      By their proposed Minute of Amendment the defenders seek to introduce (by paragraph 1) the bald averment in Answer 2, page 3, line 58, that “No price was agreed among the parties to purchase the [Fiat motorhome] Vehicle.”  By paragraph 4 they seek to add the averment at the end of Answer 5 that “Esto the defenders agreed to purchase and the pursuers agreed to sell the Vehicle (which is denied) no price was agreed among the parties.  In the absence of an agreed price the Defenders are only obliged to pay a reasonable price for the vehicle.  Reference is made to section 8 of the Sale of Goods Act 1979 and Answers 2 and 3 above.”

[14]      By paragraph 5 of the Minute of Amendment the defenders seek to increase the sum counterclaimed for to £33,000 and by paragraph 6 they seek to delete entirely and replace the only article of condescendence in the counter claim.  The first 20 lines of proposed new averments, however, all repeat and in some respects amplify the averments made elsewhere, to the effect that the pursuers were not entitled to cancel the contract and were themselves in breach of contract by so doing.  It is then averred that as a result of this breach of contract the defenders have suffered loss in that they were required to take delivery of the Chatsworth Unit, incurring transportation costs of £3,300, siting costs of £1,750, and a £28,250 reduction on resale.   The averments earlier made regarding the Badminton Unit are not repeated accordingly if amended in terms of the Minute the counterclaim would make no reference to it.

[15]      Paragraphs 7 to 11 of the Minute of Amendment seek to introduce certain pleas in law. In particular paragraph 8 seeks to introduce a plea that “the Defenders having suffered loss and damage through the Pursuers’ material breach of contract and being entitled to reparation therefor are entitled to retain any sum due to the Pursuers pending resolution of the counterclaim for the defenders”.  Paragraph 10 seeks to introduce a plea that “the sum sued for not being a reasonable price for the Vehicle, decree therefore should not be pronounced as concluded for.”

 

Discussion

[16]      While the matter is one of academic dispute (see Stair Memorial Encyclopaedia, Consumer Protection, Reissue 1, paragraph 44) and scanty case law (for example Sneddon v Durant 1982 SLT (Sh Ct) 39), in my opinion where a purchaser trades in goods against part of the purchase price of other goods the correct analysis is likely to be that there are two contracts of sale within the meaning of section 2 of the Sale of Goods Act 1979.  Party A agrees to transfer the property in the principal goods to Party B for a price.  Party B agrees to transfer the property in the trade in goods to Party A for a price.  Absent express agreement to the contrary there are thus separate sale contracts, with the connection being a practical, rather than a legal one.  In other words rather than paying over the money due to Party B in relation to the purchase of the trade in goods, only to have him give it back in partial fulfilment of his obligation to pay for the purchase of the principal goods, Party A retains it, leaving a balance due to him by Party B.  

[17]      In a contract of sale to which the 1979 Act applies the ascertainment of the price is governed by section 8.  The price may be fixed by the contract, or may be left to be fixed in a manner agreed by the contract, or may be determined by the course of dealing between the parties.  Where the price is not determined by one of these means, the buyer must pay a reasonable price.  What is a reasonable price is a question of fact dependant on the circumstances of each particular case.   Where two contracts of sale are involved in a trade in, these requirements apply to the ascertainment of the price of both the principal goods and the trade in goods.

[18]      In some circumstances, as in the present case, the seller of the principal goods may deem it to be in his interests to agree to a higher price for the purchase of the trade in goods than he might expect to obtain from a third party on resale, rather than agreeing to a lower price for the principal goods than he might expect to obtain from a third party.  For example, prior to the decision in Lex Services v Customs and Excise Commissioners [2004] 1 WLR 1 he might have hoped by this means to obtain an advantageous repayment of VAT paid on the sale of the principal goods.  However in that case the House of Lords made clear that the value of the trade in goods for VAT purposes was the part exchange price actually agreed by the parties, and not an objective ‘true value’ of the goods.   In that case, moreover, the relevant contractual documents expressly stated both the part exchange price and the ‘true value’, and also contained provision whereby if the contract for the purchase of the principal goods was cancelled by the purchaser he would be entitled only to refund of the ‘true value’. 

[19]      In the present case I am satisfied on the pleadings, which incorporate the Sales Order Form, that parties agreed two contracts of sale, one for purchase of the Chatsworth and a second for the purchase of the Fiat motorhome.  That these are separate contracts is in my view made clear by the acceptance by the defenders that their having accepted delivery of the Fiat motorhome pursuant to the agreement set out in the Sales Order Form they then sold it to a third party a few days later.  This represents an acceptance that the property in the vehicle had passed to them, even though no payment for it had been made, and thus that they had good title to contract for its onward sale:  1979 Act, section 18, rule (1).   This can in my view only be referable to a completed and unconditional contract of sale in relation to the Fiat motorhome, that is, which was not contingent on the contract for the sale and purchase of the Chatsworth proceeding to completion.

[20]      The Sales Order Form is the totality of the written agreement between the parties in relation to both the sale of the Chatsworth Unit to the pursuers and the Fiat motorhome to the defenders.  This clearly states that the sale price for the Chatsworth Unit is £81,000 and there is no dispute that this was the purchase price agreed between the parties.   It also clearly ascribes a value to the Fiat motorhome of £45,000.  That this is described as a ‘trade in allowance’ does not in my view alter the fact that properly analysed it states a clear and unambiguous sum which represents the agreed price to be paid by the defenders for the purchase of the Fiat Motorhome.   Unlike the contractual documents in Lex Services, there is no suggestion that this is not the ‘true value’ or that if the purchase of the Chatsworth were to be cancelled a lesser amount would fall to be repaid in respect of the Fiat motorhome.   Had that been the parties’ intention, the agreement could and would have stated as much, but it does not.   That it may appear with hindsight to be a bad bargain is, as counsel for the pursuers submitted, irrelevant.  The price agreed is the price agreed and the law does not protect people from making bad bargains:  see for a recent example Lloyds TSB Foundation for Scotland v Lloyds Banking Group plc [2013] 1 WLR 366 at paragraph 47.

[21]      By their first plea in law the pursuers plead that the defenders being indebted and resting owing to the pursuer in the price of the Fiat motorhome decree for £45,000 should be granted as first craved.  In my view, the defenders pleadings as presently framed disclose no good answer to this plea, nor anything which would entitle them to a proof on factual matters relevant to it.  They simply deny on facts which are sufficiently admitted that there was no contract for the sale of the Fiat motorhome for an agreed price of £45,000.  Paragraph 1 of the Minute of Amendment adds nothing to this general denial which is already on record. There is nothing to suggest that in determining whether there was indeed a contract for the sale of the Fiat motorhome with a price of £45,000 there are any grounds to look beyond and construe the terms of the written agreement.   That is so even though this case has now been in Court for more than three years.  Thus I agree with counsel for the pursuers that in the circumstances the matter falls to be determined as one of law, and can and should be determined without the need for proof.  I shall therefore sustain the pursuers’ first plea in law and grant decree as first craved.  In these circumstances I shall also refused to allow paragraphs 1, 4 and 10 of the Minute of Amendment to be received, as these paragraphs are directed only to this crave.

[22]      The position is different in relation to the pursuers’ second crave, for return of the balance of their deposit.  In relation to this there are factual matters which will require proof to resolve.   The claim for return of the deposit is founded on the pursuers establishing that they were entitled to cancel the contract when they did, in terms of paragraph 4 of the Sales Order Form.   That in turn is dependant on establishing that the “anticipated occupation date” was agreed to be 1 August 2011.  The Sales Order Form does not provide for this.  Instead it states that this date was ‘to be agreed’.  The pursuers say that it was indeed agreed, orally between the parties.  The defenders deny this.   Proof is therefore required. 

[23]      The defenders have averred that they were entitled to retain the deposit due to breach of contract on the part of the pursuers, pending resolution of a claim for damages for this breach, and to then set it off against any sums due by the pursuers (Answer 4, page 9, lines 229 – 235, Answer 6, page 10, lines 262 and 266).   This claim for retention and set off is repeated in the counterclaim as presently framed (Cond. 1, page 11, line 292).  It was attacked by the pursuers in their Rule 22 Note, and as regards any question of repayment of the deposit it is in my view misconceived and unnecessary.  That is because on a proper reading of the terms of paragraph 4 of the Sales Order Form it is for the pursuers to establish entitlement to repayment of the deposit, not for the defenders to establish entitlement to retain it.  The pursuers cannot establish entitlement to repayment unless they first establish that they were entitled to cancel the contract in accordance with paragraph 4.  There is perhaps some belated recognition of this in that in seeking to completely recast the defenders’ counterclaim paragraph 6 of the Minute of Amendment makes no reference to the deposit.   However there is no offer to amend the averments at Answer 4 and 6 in relation to setting off the deposit.  These averments must therefore be deleted. 

[24]      A more significant argument in relation to retention and set off arises in relation to the defenders’ counterclaim and the crave for payment of the price of £45,000 for the Fiat motorhome.   That is thrown into sharp relief by my decision that the pursuers are now entitled to payment of this sum.  The pursuers’ counsel took no objection to allowing paragraphs 5 to 7 of the Minute of Amendment to be received, which recast the counterclaim.  Implicit in this is a proper acceptance, in my view, that the counterclaim could not be refused by me at this stage, and indeed proof is likely to be required both in relation to whether the pursuers were in material breach of the contract to purchase the Chatsworth, and quantification of the defenders’ losses attributable to any such breach.  However counsel submitted that the plea in law for retention sought to be introduced by paragraph 8 of the Minute (the terms of which are noted above) should not be received. 

[25]      Scots law in relation to retention is authoritatively explained and clarified by in Inveresk plc v Tullis Russell 2010 SC (SC) 106.  As a general rule payment of a debt which has been found to be due and payable cannot be withheld on a plea of retention in respect of a claim which is still illiquid (per Lord Hope of Craighead at paragraph 30).  But there are exceptions to that rule, including where both the liquid debt and illiquid claim arise out of a mutual contract, in which case the creditor in the claim for damages may withhold payment of his debt until the amount due to him is established (paragraphs 32 to 33).  That a liquid debt and an illiquid claim for damages do not both arise from a single contract does not preclude a good claim for retention (paragraphs 34 – 36).  But they must both be parts of the same transaction.  And for the mutuality principle to apply the obligations founded on must truly be counterparts of each other (paragraph 36).  In considering this it is necessary to look to the overall purpose and effect of the transaction, with the guiding principle being to respect its overall unity.  If satisfied that two contracts are indeed part of a single transaction then the starting point should be that the obligations that it embraces are to be regarded as counterparts of each other unless there is a clear indication to the contrary (paragraph 42).  The requirement that the obligations be counterparts of each other should not be used in an artificial manner which breaks up the essential unity of the transaction. 

[26]      As Lord Rodger of Earlsferry explains in Inveresk, however there is another type of retention which operates in Scots law and which is akin to compensation (paragraphs 77 – 78).   This is most obviously applicable where both debts are liquid.  However even where a defender cannot actually point to a liquid debt owed to him by the pursuer, he may yet insert a plea of compensation in his defences and refer to an obligation which is not yet liquid but which he anticipates will become liquid (paragraph 79).   The illiquid claim may arise from a different clause in the same contract, or from different contracts, or from wholly different circumstances (paragraph 105).  This is an equitable remedy exercised by the court to postpone decree for the liquid debt found or accepted to be due (paragraphs 81, 83).  There are therefore no absolutely hard and fast rules (paragraph 85).   In general a defender should not be permitted to postpone liability to pay a liquid debt by reference to an illiquid debt said to be owed to him (paragraph 90, 91).  It should only be permitted when, for some reason, it would be the just and equitable way to proceed in the particular circumstances (paragraph 107).  This is a matter for sound judicial discretion and equity in the light of all the circumstances of the particular case (paragraph 89).  Being an equitable power, it is not available to a defender as of right, and must be sought from the Court and accordingly a plea in law to the effect that the defender is ‘entitled to retain’ is therefore inappropriate (paragraph 106).

[27]      In the light of these considerations counsel for the pursuers submitted that the defenders’ pleadings (even if they were to be amended as was sought) did not set out a basis on which retention or compensation could properly be claimed.   As he pointed out, the defenders in effect simply aver that the pursuers are in material breach of contract, that they have suffered consequential loss for which they are entitled to reparation, and that they are ‘therefore entitled to retain’ the sums sought from them (Answers 4 and 6).   Absent the Minute of Amendment, there is no plea in law in relation to retention at all.  The absence of pleadings setting out a proper basis for retention and a plea in law in respect of such a claim was flagged up in the Rule 22 Note lodged nearly a year ago.  However the present Minute of Amendment contains no further averments setting out the basis on which retention is claimed, and the plea in law proposed by paragraph 8 simply repeats the assertion that due to the alleged breach of contract, loss and entitlement to reparation the defenders are entitled to retain “any sum due to the pursuers”.  There was therefore still no averment that the defenders are seeking to rely on the principle of mutuality nor identifying counterpart obligations.  If on the other hand their claim was truly for compensation then again there was no averment as to why it would be just and equitable to postpone payment of the liquid sums sought by the pursuers, and the proposed plea in law was in any event inappropriate for such a claim for the reasons explained in Inveresk at paragraph 106.   Finally, even on the averments in the Minute of Amendment, counsel pointed out that because the amount counterclaimed was £33,000 there could be no possible basis for retention of £12,000 of the £45,000 due to the pursuers in respect of the price of the Fiat motorhome, even if a relevant claim for retention was pled.

[28]      In my opinion counsel’s submissions were well founded.   As matters stand, and even if the Minute of Amendment were allowed, the defenders have no averments as to the basis on which retention is sought.  The defenders’ solicitor accepted this.  The defenders’ principal position was that there was only one contract in the present case, but even if that were so, and more especially standing that I have held that it is not, there is a need to set out the basis on which it is claimed that the obligations said to arise from the alleged breach of contract by the pursuers for failing to take delivery and pay for the Chatsworth are counterpart to the obligation to pay the price agreed in relation to the Fiat motorhome.  If it were to be accepted that these obligations are not properly mutual, and the defenders are asking the court to exercise its equitable jurisdiction to postpone payment of any debt due in relation to the price of the Fiat motorhome, then again there should be averments setting out this claim and an appropriately worded plea in law.  I do not say that these claims could not be properly made (I express no view on that), simply that neither in the existing pleadings nor in the Minute of Amendment is either such claim properly set out.  I will therefore delete all the averments in relation to set off at Answers 4 and 6, and in relation to the Minute of Amendment will refuse to permit paragraph 8 to be received.

[29]      I also agree with counsel for the pursuers that certain other of the defenders’ averments are irrelevant and should not be remitted to probation.  These relate to a previous agreement to purchase the Badminton Unit.  Given that it is accepted and admitted that a subsequent contract for the purchase of the Chatsworth Unit was agreed and that the terms of that agreement are as set out in the Sales Order Form, I cannot see the relevance of any previous agreement to the issues of construction of this contract or its possible breach.  Nor can I see any good basis in the counterclaim as presently pled for averments regarding losses said to arise from the fact that the pursuers did not in fact proceed to purchase the Badminton Unit.  The defenders do not aver that the pursuers were in breach of any contract to purchase that unit.  The clear implication is, as the pursuers aver, that the defenders agreed not to hold them to any earlier agreement to purchase the Badminton Unit and that they entered a new agreement to purchase the Chatsworth.  The averments regarding the Badminton Unit at Answer 3 are accordingly irrelevant and I will accordingly refuse to admit them to probation.  The recast counterclaim in the Minute of Amendment in effect deletes any claim for damages arising from the aborted sale of the Badminton Unit, rightly in my view, but I will for completeness refuse to admit to probation the averments anent this Unit in the counterclaim as it is presently framed. 

[30]      As a separate point, counsel submitted that in any event the averments anent emails from the pursuers said to be incorporated into the pleadings in Answer 3 would also have fallen to be excluded from probation, in circumstances where the relevant documents had not been produced.   Again, in my judgment, he was correct in this.  The pleadings do not give fair notice in such circumstances:  cf. Eadie Cairns v Programmed Maintenance Paintings Ltd. 1987 SLT 777.  In the event however these averments fall to be excluded as irrelevant for the reasons set out above.

[31]      Accordingly I will sustain the first plea in law for the pursuers and grant decree in terms of their first plea in law.   I will refuse to admit to probation the defenders’ averments specified above.  I will allow the defenders’ minute of amendment to be received, with the exception of the paragraphs specified above.    I will allow the pursuers two weeks from the date of this interlocutor to lodge answers to the Minute, if so advised, and allow parties a further two weeks for adjustment of the Minute and Answers.  A hearing will be fixed no earlier than five weeks hence to consider whether to allow the Record to be opened up and amended in terms of the Minute and Answers, and for discussion of further procedure.  I will find the defenders liable to the pursuers in the expenses occasioned by the diet of debate on 6 August 2015 and certify the cause as suitable for the instruction of counsel.    Any other questions of expenses arising from the Minute of Amendment will be reserved meantime.