Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 65

 

A558/13

OPINION OF LORD KINCLAVEN

in the cause

KENNETH RAMSDEN

Pursuer;

against

SANTON HIGHLANDS LIMITED

Defender:

Pursuer:  Campbell QC;  Thorntons Law LLP

Defender:  Thomson;  Burness Paull LLP

2 June 2015

Introduction and overview

[1]        This is an ordinary action (A558/13) in which the pursuer (“Mr Ramsden”) seeks inter alia:

(1)        production and reduction of a court decree;

(2)        production and reduction of missives relating to “Plot 4” Courtyard Cottages, Fort Augustus,

(3)        production and reduction of a settlement agreement; and

(4)        damages of £41,500 for alleged breach of missives by the defender (“Santon”). 

[2]        The decree in issue is a decree of the Court of Session dated 10 October 2012 which was pronounced in an action (“the first action”) between the present pursuer (in which Mr Ramsden was the defender) and the present defender (in which Santon was the pursuer) being the action with Court Reference A730/09.

[3]        The missives concerned are between the pursuer and the defender and relate to property known as “Plot 4”, Courtyard Cottages, The Highland Club, Fort Augustus Abbey, Fort Augustus.  The missives comprise formal letters passing between Burness LLP (for the defender) and Messrs McAndrew & Jenkins (for the pursuer) dated in July and August 2005 and December 2008.  Missives were finally concluded on or around 23 December 2008.

[4]        The settlement agreement was also referred to as “Heads of Terms of Settlement” and is contained in a document dated 17 May 2011 signed by counsel on behalf of both parties.

[5]        The case came before me for debate (along with two other related cases) on the procedure roll on 30 and 31 October 2014.  During the debate the pursuer lodged a minute of amendment.  The pleadings were amended on 30 December 2014 in terms of the minute and answers nos 15 and 16 of Process.  The amended record is no. 17 of process.  The debate resumed on 27 February 2015.

[6]        Mr Thomson appeared for the defender at the debate.  He invited me to sustain the defender’s first and second pleas-in-law and to dismiss the action.  The defender is a property development company.

[7]        Mr Campbell appeared for the pursuer.  He invited me to allow a proof before answer.

[8]        Having considered the pleadings, and the submissions of parties, I have reached the conclusion (for the reasons outlined more fully below) that the defender’s submissions prevail.

[9]        Accordingly, I shall sustain the defender’s first and second pleas-in-law, repel the pursuer’s pleas-in-law and dismiss the action.

[10]      I shall reserve meantime the question of expenses.

[11]      I would outline my reasons as follows.

 

The general background

[12]      The present action is at the instance of Mr Ramsden.  It has Court Reference A558/13 and it relates to “Plot 4” Courtyard Cottage.  Both counsel treated this case as the lead action and I shall do likewise. 

[13]      There are, however, two other related actions against the present defender involving similar issues in relation to relevancy.  The second action is also at the instance of Mr Ramsden (Court Reference A559/13) and it relates to “Plot 3”.  The third action is at the instance of Ian Thomas (Court Reference A556/13) and it relates to “Plot 11” and “Plot 5”. 

[14]      The pleadings in the current case are contained in the print of the closed record (as amended, (no 17 of process).  The pleadings and defender’s original written note of argument (no 13 of process) can be taken as read.

[15]      The pursuer’s first plea-in-law is to the effect that there are “exceptional circumstances” to justify reduction of the court decree.

[16]      The pursuer’s second plea-in-law relates to the missives and the settlement agreement and is to the effect that the pursuer was induced to enter into the missives as a result of “failure of the defenders to disclose the existence of contaminated land”.

[17]      The pursuer’s third plea-in-law is to the effect that the pursuer is entitled to damages as a result of the defender’s breach of “implied obligations under the missives”.

[18]      The pursuer’s fourth plea-in-law is to the effect that the pursuer is entitled to retain payment of the purchase price.

 

The context

[19]      As mentioned above, and as appears from article 2 of condescendence, there was an earlier action (referred to as “the first action”) between the parties in this court. 

[20]      In that action Santon (the present defender) sought (1) declarator that the parties were bound by the missives for the sale and purchase of Plot 4 (“the subjects”) and (2) payment by Mr Ramsden (the present pursuer) to Santon (the present defender) of the sum of £246,500 plus interest in exchange for a valid disposition of the subjects. 

[21]      Decree in the first action was granted in favour of Santon on 10 October 2012.  On that date the court found that the parties were bound by the settlement agreement entered into on 17 May 2011 and pronounced decree in terms of the first and second conclusions of the summons in the first action.  In addition the court pronounced decree against Mr Ramsden for payment of the expenses of the minute and answers procedure relating to the settlement agreement in the first action.

 

Authorities

[22]      In the course of the hearing I was provided with various copy authorities – including a lever arch file for the defender.

[23]      In particular, during the course of the debate, I was referred to:

• Maclaren, Court of Session Practice (1916), page 401;
• D M Walker, Civil Remedies (1974), pages 179 and 180;
• Maxwell, The Practice of the Court of Session (1980), pages 583 and 584;
• The Consumer Protection from Unfair Trading Regulations 2008 (“the 2008 Regulations”).Reference was made, in particular, to regulation 2(1) (definitions of “consumer”, “professional diligence” and “transactional decision”), regulation 3(4), regulation 6(1)-(4), regulation 19, Part 4A (“Consumers’ Rights to Redress” regulations 27A, 27C, 27E) and regulation 29 (“Validity of agreements”). Part 4A of the 2008 Regulations was added by the Consumer Protection (Amendment) Regulations 2014 2014/870, regulation 3, in relation to contracts entered into, or payments made, on or after 1 October 2014.
• PMP Plus Ltd v Keeper of the Registers of Scotland 2014 SLT (Lands Tr) 79, at paragraphs [51] to [53], [55] to [58] and [118];
• Moyarget Developments Limited v Mathis [2006] CSOH 145 at paragraphs [5], [7], [10], [11], [16], [17], [20] and [40];
• Haigh & Ringrose Ltd v Barrhead Builders Ltd 1981 SLT 157;
• Burnett v Menzies Dougal WS 2006 SC 93, at paragraphs [14] and [17];
• Grant Estates Limited (in liquidation) and Others v The Royal Bank of Scotland plc and Others [2012] CSOH 133, at paragraphs 85, 87, 88, and 93;
• Royal Bank of Scotland plc v O’Donnell and McDonald [2014] CSIH 84, at paragraph [25].

[24]      Counsel for the pursuer also referred to:

• Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 - ‘Unfair Commercial Practices Directive’ (“the Directive”).Reference was made in particular to paragraphs (5), (6), (7), (8), (9) (13), (14), and (18) and to the definitions in Article 2 (a), (e), (h), (i), and (k);
• Vapenik v Thurner [2014] 1 WLR 2486, the rubric at page 2486; and
• The Earl of Perth v Lady Willoughby de Eresby’s Trustees (1875) 2R 538, particularly at page 545.

[25]      Mention was also made of the well-known case of Jamieson v Jamieson 1952 SC (HL) 44 which provides the test for relevancy of a pursuer’s averment.

[26]      There was no joint minute of agreement.

 

The defender’s position

[27]      The defender’s first plea-in-law is in the following terms:

“The present action being based on averments that relate to allegations of misleading omission, misrepresentation and breach of contract, being matters that were competent by way of defence to the First Action but which were omitted from the defence to that action, the present action is incompetent and the defenders should be assoilzied, which failing the action should be dismissed”.

 

[28]      The defender’s second plea-in-law is that:

“The pursuer’s averments being irrelevant et separatim lacking in specification, the action should be dismissed.”

 

[29]      As a result of the pursuer’s amendments and deletions, the defender no longer requires to insist upon paragraphs 16, 21, 22, 23, 26, 32 or 33 of their original note of argument (no. 13 of process).  The first sentence of paragraph 17 is also no longer required.  [30]           Mr Thomson insisted on the defender’s first and second pleas-in-law, and sought dismissal of the action on the following basis:

 

 

I  The defender’s first plea-in-law:  “Competent and Omitted”

[31]      Mr Thomson submitted that the defender’s first plea-in-law “Competent and Omitted” should be sustained

[32]      This action proceeds on the basis that all that took place in the first action should be undone.  In the first action Santon sought to enforce the missives between the parties.  The action was defended by Mr Ramsden.  In seeking to defend the first action, Mr Ramsden did not advance any of the lines of argument which are advanced in the present action as grounds for reduction of the decrees, the settlement agreement, and the missives.  In short, Mr Ramsden cannot now challenge the prior judgment on such grounds, they all being grounds of defence which it was competent to plead in the first action but which he omitted to do.          On that basis, the first plea in law should be sustained and the action dismissed.

[33]      For completeness, however, a mere failure on the part of the pursuer to appreciate that he might have had other grounds to defend the first action does not in any way affect the applicability of the plea of “competent and omitted”.  Effectively, the pursuer could only seek reduction on averments amounting to res noviter, namely facts which were not only unknown to him at the time of the decrees and deeds he seeks to reduce, but which could not have been known to him.  The pursuer makes no such averments and thus the action must be dismissed.

 

II  The defender’s second plea-in-law:  to the relevance

[34]      In any event, the defender’s second plea-in-law should be sustained for the following reasons – so submitted Mr Thomson.

 

 

1.  Consumer

[35]      Firstly, the present action proceeds on the footing that the pursuer considers that he contracted with the defender as a “consumer” for the purposes of The Consumer Protection from Unfair Trading Regulations 2008 (the “2008 Regulations”) - albeit the pursuer makes no express averment to that effect.

[36]      In article 2 of condescendence the pursuer avers that “in acquiring the property the pursuer was acting for purposes outside his business.  He bought the property as a holiday home for himself and his family.  When occupied it has been available to let by arrangement.”  From the outset, these averments appear to be contradictory.  First, it is averred that the property was to be “a holiday home for [the pursuer] and his family”.  Secondly, however, it is averred that “when occupied it has been available to let by arrangement”.  This averment appears to be an offer to prove that the occupancy of the property has been on the basis of the letting of the property (presumably to third parties rather than to the pursuer’s family).  The pursuer cannot let the property to himself.  A similar averment is made at the start of article 3 of condescendence:  “the pursuer bought the subjects as a holiday home.”

[37]      Mr Thomson made reference to certain averments made by the defender in answer – but the defender’s averments are of no moment for present purposes.  I require to consider the pursuer’s averments – and to take them pro veritate.

[38]      Mr Thomson also noted that in a separate action before this court (case reference A559/13) the pursuer seeks similar orders in relation to the property next door to the property with which the present action is concerned.  In that action too, the pursuer avers that he bought the property with which that action is concerned as a “holiday home”.  Mr Thomson suggested that the pursuer cannot logically have bought these two properties, as a consumer, with a view to using both of them as holiday homes (for himself and his family). His averments can only be seen as uncandid.  The relevancy of his averments must be tested on the footing that he did not contract qua consumer in relation to either property.

[39]      On that basis, any reliance which the pursuer seeks to place upon the 2008 Regulations is necessarily unfounded since they apply only to transactions by consumers.  To the extent, therefore, that the action is founded upon the 2008 Regulations it is irrelevant.

[40]      Even if (contrary to the foregoing) the pursuer does fall to be treated as a consumer, the action is nevertheless irrelevant for the following additional reasons.

 

2.  Ownership of common property

[41]      Secondly, the de quo of the various grounds on which the pursuer seeks reduction of the decrees and deeds is that he has contracted to purchase the subjects on terms which will make him an owner of common property, which common property includes what the pursuer describes in averment as “a ‘Sports Ground’ and an area to the south of the ‘Sports Ground’”.

[42]      In article 3 of condescendence, the pursuer makes averments with reference to the Deed of Conditions which conclude with the averment that “the Common Parts (i.e. those parts of the development) owned pro indiviso were thus sufficiently defined to enable them to be identified with precision.”  These averments are irrelevant – so submitted Mr Thomson.  It is clear from the descriptions used that no specific property which was to form common property had been identified at the date of conclusion of missives or indeed at the date of the decrees and deeds which the pursuer seeks to reduce.  Importantly, at the date of the various grants of split-off dispositions in favour of other proprietors, no specific property which was to form common property had been identified.  It equally necessarily follows that no common property was conveyed to the individual proprietors, with the result that the defender retains ownership of those parts of the development which have been conveyed to individual proprietors.  On that basis alone, it cannot be said that the pursuer has contracted to become an owner of common property which includes the “Sports Ground” and other areas of land to which the pursuer refers. The fact that the defender now seeks to use such land for other uses simply reinforces that necessary conclusion.  On this basis alone, therefore, the pursuer is bound to fail since the de quo of his action is unsound.

 

3.  Relevancy

[43]      Thirdly, the pursuer’s averments fail the test for relevancy.  The pursuer no longer insists on any alleged breach of common law duty.  It appears that the pursuer’s position might be that those duties were imposed on the defender by virtue of the 2008 Regulations.  If that is the pursuer’s case then the averments are irrelevant because:

• for the reasons already given, the pursuer was not a “consumer”; and
• the 2008 Regulations do not give rise to the imposition of enforceable duties as between the parties to this transaction.

[44]      Further and in any event, the pursuer’s averments regarding the duties said to have been owed by the defender to the pursuer are irrelevant because:

• the later averments in article 4 of condescendence about knowledge on the part of the defender of “contaminated land” are irrelevant.  They contradict the pursuer’s other averments which are to the effect that he is not offering to prove that the (ex hypothesi) common property is contaminated but merely that part of the common parts relating to the subjects “may be ‘contaminated land’ for the purpose of the 1990 Act” (article 6 of condescendence); and
• that being so, the averments of actual or constructive knowledge of actual contamination have no proper basis in any factual averments made by the pursuer.

[45]      Moreover the following averments made by the pursuer in article 4 simply serve to confuse the position even more:

“This action does not contend that if the defenders had engaged in a misleading commercial practice, the contract would be null and void.  It seeks to establish that if there has been a misleading commercial practice, then the general unfairness of the commercial term(s) in question and their effect on the parties’ intentions fall to be considered.  The identification of an unfair commercial practice leads to consideration whether or not the parties have contracted under an essential error or such a degree of unfairness as to obviate the transaction.  The requirement for effective Regulations is to meet the objective of Directive 2005/29/EC.  The effect of the defender’s stance would be to deny consumers any remedy under the Directive, and require them to rely only on local authority action.”

 

[46]      Those averments are irrelevant because:

• they begin by inviting a consideration of the “general unfairness of the commercial term(s) in question”.  The pursuer nowhere, however, specifies what term or terms he has in mind as being subject to such consideration;
• the averments then appear to proceed upon the basis that the parties, rather than the pursuer alone, have “contracted under an essential error”.  If, as the averments clearly appear to contemplate, the error in question (which itself is not identified in averment) was a mutual error then it is difficult to see how the law could impose duties of disclosure on the defender of the type condescended upon by the pursuer;
• the averments nowhere identify what the “degree of unfairness” about the transaction is said to be; and
• the invocation of a need for the provision of an effective remedy does not assist the pursuer since the 2008 Regulations plainly do not create or impose on the defender the duties which he sets forth in averment.  The 2008 Regulations simply cannot be construed in the manner suggested by the pursuer.

[47]      In article 6 of condescendence the pursuer avers that:

“Since the date on which decree was granted in the first action, the pursuer has become aware that part of the common parts relating to the subjects may be ‘contaminated land’ for the purposes of the 1990 Act.”

 

[48]      These averments are irrelevant.  Without a definite offer to prove that the alleged common property is contaminated land, the pursuer cannot have any grounds for the grant of what is, after all, the extraordinary remedy of reduction of the decrees or various deeds to which reference is made in the conclusions of the summons.  An offer to prove merely that part of the common parts “may be” contaminated amounts to no more than saying the land might be contaminated or it might not.  On that basis, the pursuer has periled his case on the weaker alternative, namely that the land in question is not contaminated.  If it is not contaminated, the pursuer has no case and the action must be dismissed.

[49]      In the remainder of article 6 of condescendence, the pursuer avers that “the defender took no steps to ensure, so far as it was reasonably practicable to do so, that the local authority was satisfied that the area of land to the south of the ‘sports ground’ was not ‘contaminated land’ for the purposes of the 1990 Act.”  In the first instance, it will be recalled that the pursuer does not offer to prove that the land in question is contaminated but merely that it may be contaminated.  Beyond that, however, the fact of the matter is that the pursuer admits the terms of the planning permission.  There is no offer to prove that any condition of the planning permission has been breached.  There has been no attempt by the pursuer to challenge (even to reduce ope exceptionis) the planning permission.  That is an end of the matter and it is not open to the pursuer to seek to undo the planning permission effectively “by the back door” as his averments do.

[50]      In article 7 of condescendence the pursuer avers:

“The omission by the defender to provide the pursuer with information material to his decision as to whether to proceed with the purchase, and the defender’s representation to the local authority about its intentions for the area of land to the south of the ‘Sports Ground’ provide the exceptional circumstances in which reduction of the decrees granted on 10th October, 2012 may be granted.”

 

[51]      These averments are irrelevant.  

• Firstly, for the reasons already given, these averments justify the defender’s plea of competent and omitted being sustained.  
• Secondly, and again for the reasons already given, there were no duties owed by the defender to the pursuer about “information material to [the pursuer’s] decision whether to proceed with the purchase”.
• Thirdly, the pursuer’s averments do not disclose any actionable misrepresentation on the part of the defender (indeed an earlier reference to “misrepresentation” has now been deleted and replaced by the word “representation”).  
• Fourthly, even if these matters are taken at their highest, they could not ever amount to “exceptional circumstances” such as would justify decree of reduction being pronounced.

[52]      The pursuer goes on to make the following averments in article 7:

“Moreover, the omission by the defender to provide the pursuer with that information meant that the pursuer was unable to raise the issue of misleading omissions in the first action.  …  In the circumstances, it would be unconscionable for the defender to be permitted to continue to hold the decrees pronounced in the first action.”

 

[53]      Those averments are irrelevant:

• Firstly, the pursuer does not aver that he was unable to raise the issue of misrepresentation (or representation) in the first action.  
• Secondly, the pursuer’s averment that he was unable to raise the “misleading omissions” issue in the first action because of the omissions themselves is illogical.  The pursuer’s position is that he became aware of the issue (see his averments at the start of article 6 of condescendence) at an unspecified time and for reasons which he has failed to identify/explain in averment, despite being called upon so to do (in answer 6).

[54]      In article 7 of condescendence the pursuer avers that “had the defender fulfilled its obligation and provided the pursuer with that information, the pursuer would have resiled from the Missives whenever he was able to do so.”  The pursuer does not, however, identify any circumstances (including specifically any term of the Missives) which would have entitled him to resile from the Missives.  In the absence of any such averment, his averment that he would have resiled is irrelevant.

[55]      Overall, therefore, there is no relevant basis laid in averment for the grant of decree of reduction in terms of the first, second or third conclusions.

[56]      For all of these reasons, the action should be dismissed – so submitted Mr Thomson.

 

The pursuer’s response

[57]      In response, Mr Campbell highlighted the pursuer’s pleadings and the authorities already mentioned above (which I do not propose to rehearse). 

[58]      Article 2 of condescendence sets out details of the first action.  The pursuer avers inter alia that: “in acquiring the property the pursuer was acting for purposes outside his business.  He bought the property as a holiday home for himself and his family.  When occupied it has been available to let by arrangement.”

[59]      Article 3 relates to inter alia the development site, the subjects and the missives.

[60]      In article 4 the pursuer sets out the duties which he alleges were owed to him by the defender in relation to the provision of information.  It includes the averment that “The existence of contaminated land being known, or which ought to have been known, to the defenders, required to be brought to the pursuer’s attention in the course of the transaction”.  Reference is made to the Consumer Protection from Unfair Trading Regulations 2008 (“the 2008 Regulations”) and to Directive 2005/29/EC.  It is also averred that “The effect of the defender’s stance would be to deny consumers any remedy under the Directive, and would require them to rely on local authority action.”

[61]      Article 5 of condescendence relates to the terms of the missives.  The pursuer avers inter alia that:  “The missives remain enforceable because they were founded upon by the parties within a period of two years from the date of entry. … The pursuer founded on the missives in the first action.  He became the proprietor of common property in the manner herein condescended on”.

[62]      In article 6 the pursuer avers inter alia that: “Since the date on which decree was granted in the first action, the pursuer has become aware that that part of the common parts relating to the subjects may be “contaminated land” for the purposes of the 1990 Act.  The area to the south of the “Sports Ground” was, after the Second World War, and mainly after 1960, used as a landfill site.”  The pursuer also makes averments to the effect that the defender was aware of this past use and of the potential presence of “contaminated land” yet omitted to inform the pursuer. 

[63]      In article 7 the pursuer sets out his alleged basis for reduction.  He avers inter alia that: “The omission by the defender to provide the pursuer with information material to his decision as to whether to proceed with the purchase, and the defender’s representation to the local authority about its intentions for the area of land to the south of the ‘Sports Ground’ provide the exceptional circumstances in which reduction of the decrees granted on 10^th October 2012 may be granted”.

[64]      The pursuer continues by averring in article 7: 

“Moreover, the omission by the defender to provide the pursuer with that information meant that the pursuer was unable to raise the issue of misleading omissions in the first action.  The pursuer did not investigate the condition and history of the surrounding land in the course of the sale and purchase transaction in which he was engaged.  He did not investigate the condition and history of the land lying south of the Sports Ground.  He was not told about the condition and history, nor could he have discovered them, nor would it have been normal practice (save as to search of the Title, which would not have shown them) for a purchaser of subjects such as Plot 4 to do so.  In the circumstances, it would be unconscionable for the defender to be permitted to continue to hold the decrees pronounced in the first action.”

 

[65]      Against that background, Mr Campbell argued that there was enough on record by way of averment by the pursuer for a proof before answer. 

[66]      In essence, Mr Campbell’s submissions for the pursuer were to the following effect:

• That a plea of “competent and omitted” was only available to a pursuer and was not open to a defender such as Santon;
• That the pursuer’s pleadings were sufficient to amount to res noviter and disclosed exceptional circumstances justifying reduction; and
• That the pursuer offers to prove that he contracted as a “consumer”; and
• That the pursuer’s claims based on the 2008 Regulations and the Directive were sufficiently supported by averment.

[67]      Applying the test in Jamieson v Jamieson, it could not be said that the pursuer must necessarily fail. 

[68]      Accordingly, a proof before answer was appropriate – so submitted Mr Campbell.

 

Discussion

1.  First plea-in-law for defender - “competent and omitted”

[69]      In relation to the present defender’s plea of “competent and omitted” it is important to bear in mind that in “the First Action” Santon (the current defender) was the pursuer and Mr Ramsden (the current pursuer) was the defender.  In this action those roles are reversed.  Mr Ramsden is now the pursuer and Santon is now the defender.  The views expressed in Earl of Perth v Lady Willoughby de Eresby’s Trustees (1875) 2R 538, at page 545, and in Maclaren, Court of Session Practice (1916) page 401, fall to be seen in the context of those role reversals. 

[70]      In my opinion, there is no impediment to a plea of “competent and omitted” being taken by Santon in this action. 

[71]      Applying the wording of Earl of Perth to this case, Mr Ramsden was bound, for his own protection, to state all his defences (in the first action) and if he omits anything, and judgment has gone against him, he has lost his opportunity.  That judgment must take effect, although Mr Ramsden may have had a relevant competent, and well-founded plea, which he has not chosen or has omitted to state. 

[72]      In other words, Mr Ramsden cannot challenge a judgment regularly pronounced against him, on the ground that there was a defence which was competent to him but which he omitted to set up.

[73]      The question still remains: should the plea of “competent and omitted” be sustained at this stage?  Having considered the pleadings and the submissions of counsel, I can see no good reason to postpone a decision.  A decision can be taken now on the basis of the pursuer’s averments. 

[74]      Taking the pursuer’s averments pro veritate, the pursuer’s case must necessarily fail and the defender’s plea of “competent and omitted” falls to be sustained.

 

Res noviter veniens ad notitiam?

[75]      I also agree with the defender’s’ submission that the pursuer has failed to make relevant averments of res noviter as described in the authorities.  In any event the circumstances averred by the pursuer are not sufficient to justify reduction.

[76]      Res noviter must refer to some fact which was not known and which could not, with reasonable care and diligence, have been known before.  The pursuer requires to aver circumstances showing that he was excusably ignorant of how matters stood.  He must give particulars of its discovery and of the circumstances which bear upon the possibility of his having acquired earlier knowledge of it.

[77]      The pursuer’s averments in the present case fall short of res noviter. 

[78]      The pursuer’s pleadings do not disclose sufficient relevant and specific circumstances to justify reduction on the grounds of exceptional circumstances.

 

2.  Second plea-in-law for defender - relevancy

1.  Consumer?

[79]      I agree with Mr Campbell that the pursuer has done enough to relevantly aver on Record that he is a “consumer” within the meaning of the Consumer Protection from Unfair Trading Regulations 2008 (“the 2008 Regulations” - Regulation 2) and the Unfair Commercial Practices Directive (“the Directive” - Article 2(a)).  The pursuer’s averments of being a “consumer” are of doubtful relevancy but the pursuer has offered to prove them and they would be sufficient for proof before answer on that limited point. 
2.  Ownership of Common Property?

[80]      I also agree with Mr Campbell in relation to the defender’s arguments relating to the alleged ownership of common property.  The pursuer’s averments are of doubtful relevancy but he has offered to prove them.  In the absence of agreement in relation to the underlying factual position it would be going too far too fast to decide that particular point against the pursuer at the relevancy stage. 

 

3.  Relevancy?

[81]      However, I agree with Mr Thomson that the pursuer’s averments are essentially lacking in relevance and specification for the following reasons.

[82]      Firstly, the pursuer has failed to make relevant averments of when and by what means he claims to have become aware that part of the common parts relating to the subjects may be “contaminated land”. 

[83]      Secondly, the pursuer’s averments about alleged “exceptional circumstances” are not sufficiently relevant or specific.

[84]      Thirdly, the pursuer has failed to relevantly aver that there was any “material information” (as defined in the 2008 Regulations) which the defenders were under a duty to provide in relation to contamination of land. 

[85]      Fourthly, and in any event, the pursuer’s claims based on the 2008 Regulations and the Directive are not supported on averment.  Neither the 2008 Regulations nor the Directive confer any direct right of action upon the pursuer in this action.  Consumers now have certain “rights of redress” conferred upon them under Part 4A of the 2008 Regulations - but in relation to contracts entered into, or payments made, on or after 1 October 2014.  The pursuer’s claims relate to earlier times.  The missives were concluded on or around 23 December 2008. 

[86]      I agree with the defender that the 2008 Regulations do not give rise to the imposition of enforceable duties as between the parties to the transaction in this case.  Regulation 29 of the 2008 Regulation also provides that:  “[Except as provided by Part 4A, an] agreement shall not be void or unenforceable by reason only of a breach of these Regulations”.

[87]      There are no relevant averments in the amended record to support the fourth conclusion of the summons or the pursuer’s third or fourth pleas-in-law.

[88]      In the result, and for those reasons, the defender’s first plea-in-law, to the relevancy of the pursuer’s averments, should also be sustained.

 

Conclusion

[89]      The defender’s plea of competent and omitted is well founded.  In any event, the pursuer’s averments are not sufficiently relevant and specific to support the claims made on record.  Taking his averments pro veritate, the pursuer’s case must necessarily fail and his pleas-in-law should be repelled.

 

Decision

[90]      For the reasons outlined above, I shall sustain the defender’s first and second pleas-in-law, repel the pursuer’s pleas-in-law, and dismiss the action.

[91]      I shall reserve meantime the question of expenses.