Client who claimed Scots legal firm ‘acted without authority’ in concluding missives sues lawyers

The pursuer’s “alternative case” was to the effect that if the defenders were instructed to conclude missives on his behalf, they were “in breach of their professional duties of care” because they had caused him loss.

A judge in the Court of Session allowed a proof before answer after ruling that it was “not contrary to substantive justice” to allow the pursuer to try and prove his “alternative and inconsistent cases”.

Lord Stewart (pictured) heard that the defenders Kevin Davidson and Iain Wilson, the surviving partners of KWAD Solicitors in Aberdeen, concluded three sets of missives on behalf of the pursuer Alistair Greig for the purchase off-plan of three houses at The Park development, Pittodrie, Aberdeen in March-April 2008.

But when the date of entry arrived in December 2008 Mr Greig failed to pay the purchase prices and the developers rescinded the missives before suing Mr Greig for damages for breach of contract.

Mr Greig’s defence in the sheriff court was that he was not contractually bound because KWAD had acted without his authority in concluding missives, but the sheriff found that there had been authority to transact, that Mr Greig was in breach of contract and that the developers were entitled to rescind the missives in each case.

He also found Mr Greig liable for any losses incurred by the developers and continued the cause for further procedure, but the action was settled by payment to the developers in the sum of £125,000.

Mr Greig then raised an action against the former partners of KWAD, the current defenders, for that sum and for legal expenses incurred – a total sum of £192,972.42 with interest.

The primary basis of Mr Greig’s action was that he did not instruct the defenders to act for him in the matter, far less to enter into missives, and that by doing so without authority they caused him the loss for which he now sought reparation.

His alternative basis of claim was introduced by the words: “Separatim esto the defenders had been instructed by the pursuer to conclude missives on his behalf (which is denied)…” and was to the effect that the defenders were in breach of their professional duties of care with the result that they negligently concluded missives in terms that were not agreeable to him and caused him the loss.

For the defenders it was argued, among other things, that it could not be in the interests of justice to allow a claimant to adopt “flagrantly inconsistent stances” by saying on the one hand: “I did not give instructions, but if I am lying and I did give instructions the defenders made a mess of my instructions”.

The judge agreed that it would be “unjust” to allow a party to run an alternative case that he “knows to be untrue”, but added that could not know at this stage in the proceeding whether that was the case.

It was submitted on behalf of the pursuer that the “general rule” is that it is permissible to state alternative and inconsistent cases, if otherwise relevant, unless it is incompatible with substantial justice to do so – and Lord Stewart considered that that was “correct”.

The judge decided to allow a proof before answer on the whole of the parties’ respective averments, reserving the question of relevancy.

In a written opinion, Lord Stewart said: “I have to agree: but I cannot know at this time that the pursuer is running ‘an alternative case that he knows to be untrue’.

“Of course, if the pursuer is ‘lying’…and if the pursuer is tempted to do so on oath, then he should be advised, if he has not already been given this advice, that there is a risk of the case being reported for possible prosecution for perjury.

“My conclusion is that it is not contrary to the substantive justice of the situation to allow the pursuer to try and prove both his cases.”