KINCH LIMITED AGAINST GORDON HUGH ADAMS AND SANDRA DOROTHY ADAMS T/A G & S
SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW
CA64/14
2015SCGLA8
JUDGMENT
by
SHERIFF S. REID Esq.,
in the cause
KINCH LIMITED
PURSUER
against
GORDON HUGH ADAMS
and
SANDRA DOROTHY ADAMS t/a G & S PROPERTIES
DEFENDERS
______________________________
Act: U. Tariq, Advocate, instructed by Cloch, Solicitors, Glasgow
Alt: D. Thomson, Advocate, instructed by Thorntons Law LLP, Dundee
GLASGOW, 28 January 2015. The sheriff, having resumed consideration of the cause
FINDS IN FACT:
(1) By missives dated 31 January 2014 and 3 February 2014 (hereinafter referred to as “the missives”) the parties contracted for the sale and purchase of the heritable property known as and forming The Atrium, 58 Cresswell Street, Glasgow (“the property”).
(2) Items numbered 5/1/21 and 5/1/19 of process are true copies of the missives.
(3) The property was tenanted by Gilbert Kinch of […..] Rothley, Leicestershire […..] in terms of a lease between Palisade Properties plc and John Longmuir and Ian Foster as partners of and trustees for the firm of Esquire Coffee House, dated 19 November 2001 and registered in the Books of Council and Session on 14 March 2002 as amended by (i) Minute of Agreement and Extension of Lease between the defenders and John Longmuir and Ian Foster, as partners and trustees aforesaid, dated 25 August and 8 November 2005 and registered in the Books of Council and Session on 24 January 2006; and (ii) assignation by John Longmuir and Ian Foster, as partners and trustees aforesaid, and Gilbert Kinch, dated 16 and 21 October 2009 and registered in the Books of Council and Session on 26 October 2009 (hereinafter together referred to as “the lease”).
(4) Items numbered 6/1/2, 6/1/3 and 6/1/4 of process are true copies of the documents which together constitute the lease.
(5) In or around January 2014 the pursuer was uncertain as to whether it wished to proceed with the proposed purchase of the property; that uncertainty related to the pursuer’s ability to fund the purchase; the pursuer intimated this uncertainty to the defender and, further, that in or around January or February 2014, the principals of the pursuer (Mr and Mrs Gilbert Kinch) would be discussing matters with their son, Wayne Kinch (who managed the coffee shop which the tenant operated from the property).
(6) Against that background, the pursuer indicated that it was willing to conclude missives if the contract included an option for the pursuer to withdraw from the missives by 20 February 2014.
(7) The defender was agreeable to that proposal which, in due course, found its expression in clauses 3.6 and 3.7 of the missives.
(8) Clauses 3.6 and 3.7 of the missives state:-
“3.6 In consideration of the [pursuer’s] solicitor issuing this Offer for acceptance prior to 20 February 2014, [the defenders] hereby agree that if [the pursuer] validly withdraws from the missives by fax to […..] (marked for the attention of Janice Napier) or receipted email to […..] prior to 12 noon on 20 February 2014, [the pursuer] will be liable to [the defenders] for their reasonable legal fees incurred in relation to this matter but not the other expenses provided for in clauses 3.2 and 3.3 of this Offer.
3.7 If [the pursuer] has not withdrawn from the missives in accordance with clause 3.6 of this offer by 12 noon on 20 February 2014, from 12.01 on 20 February 2014 the missives will be read on the basis that clauses 3.6 and 3.7 are pro non scripto.”
(9) On 18 February 2014, the pursuer’s solicitor sent an email (timed at 19:19 hours) to the defenders’ solicitor (to the email address [….])(“the email”); the email was received; and a receipt was issued.
(10) The email, so far as material, reads as follows:-
“I have received a remarkably long email from my client. In short, my client met with its accountants yesterday and were advised that the property should not be purchased by Kinch Ltd as per the current agreement but by Kinch Investments Ltd (08899815) (see attached). THUS, I understand that my client declines to consent to the missives by noon Thursday 20th February 2014- although deliberations are ongoing. If certain questions (below) are satisfactorily answered and accepted by my client, new missive conditions could apply on a fresh agreement with my client after Thursday 20th February 2014 and could be signed as early as Thursday 6th March 2014 with an entry date of no later than Tuesday 6thMay 2014.
QUESTIONS – (I need input from you – please):
1. What are your reasonable legal costs incurred to date which my client may have to cover?
2. If a new agreement is reached and agreed, what will the legal costs be if my client did not proceed within 14 days of entry date May 6th 2014 namely by 20th May 2014?
My client accepts that should the missives not be honoured by 6 May 2014 or within a further late 14 days by 20 May 2014, it is right and proper that it pay both sides reasonable legal fees but would not accept any further cost of remarketing the property for sale and more importantly, would not sign any agreement relating to shortfall of future sale proceeds.”
(11) Item numbered 5/1/15 of process is a true copy of the email.
(12) Item numbered 5/1/16 of process is a true copy of the receipt issued in respect of the delivery of the email.
(13) Item numbered 5/1/17 of process is a true copy of an attachment which was sent under cover of the email.
(14) The parties are in dispute as to whether the email amounted to a valid and effective notice of the pursuer’s withdrawal from the missives, in terms of clause 3.6 thereof.
FINDS IN FACT AND IN LAW
(1) Upon a proper construction, the email complies with the technical and formal requirements of the notice prescribed by clause 3.6 of the missives.
(2) Upon a proper construction, the email does not constitute an effective notice of the pursuer’s withdrawal from the missives, in terms of clauses 3.6 thereof.
THEREFORE Sustains the first and third pleas-in-law for the defenders; Repels the pleas-in-law for the pursuer; Assoilzies the defenders from the craves of the initial writ in principal action; meantime, Reserves the question of expenses; Appoints parties to be heard, at further case management conference to proceed by way of telephone conference call before Sheriff Reid, on a date and at a time to be assigned, to determine further procedure in respect of the defenders’ counterclaim and to determine the question of expenses.
SHERIFF
NOTE:
Summary
[1] The defenders are the owners and landlords of a coffee shop at 58 Cresswell Street, Glasgow.
[2] The pursuer agreed to buy the coffee shop in terms of missives entered into between the parties. There was some uncertainty as to whether the pursuer was able to fund the purchase. Accordingly, the missives included a provision allowing the pursuer to withdraw from the missives, provided notice of the pursuer’s withdrawal was communicated to the defenders, by specified facsimile transmission or email, prior to 12 noon on 20 February 2014.
[3] On 18 February 2014 an email was sent by the pursuer’s solicitor to the defenders’ solicitor.
[4] The issue in dispute between the parties is whether, upon a proper construction, the email constitutes a valid and effective notice of the pursuer’s withdrawal from the missives, in terms of clause 3.6 of the missives.
Procedural history
[5] On 13 May 2014, the pursuer lodged the initial writ seeking inter alia declarator that the email constituted a valid withdrawal notice pursuant to clauses 3.6 and 3.7 of the missives.
[6] On 19 May 2014 defences and a counterclaim were lodged for the defenders.
[7] On 23 October 2014, following sundry procedure, on joint motion a proof before answer was allowed, restricted to the issue of whether the email constituted a valid withdrawal notice, reserving the parties’ preliminary pleas meantime. It was anticipated that parties would enter into a joint minute agreeing evidence, with a view to allowing the proof to proceed by way of submissions only.
[8] On 8 December 2014, the action called before me at the proof diet. A joint minute (number 14 of process) was duly lodged in terms of which the parties agreed certain facts and quoad ultra renounced probation in respect of the issue specified in the preceding interlocutor.
[9] Accordingly, the restricted proof before answer proceeded by way of submissions on the agreed facts. Having heard parties’ counsel I made avizandum.
Submissions for the pursuer
[10] The pursuer’s counsel lodged helpful written submissions. These were supplemented by oral submissions at the bar. He submitted that the email was valid in form and, on a proper construction, constituted an effective withdrawal from the missives in compliance with clauses 3.6 and 3.7.
[11] Counsel submitted that the missives prescribed no particular form for the withdrawal notice other than that it be a communication by fax or email, to a prescribed number or email address, received prior to the specified deadline of 12 noon on 20 February 2014. Counsel submitted that the email complied with the formal requirements of the withdrawal notice.
[12] Secondly, the pursuer’s counsel submitted that, on a proper construction of the email, it conveyed unambiguously to a reasonable recipient, circumstanced as the actual recipient was, that the pursuer was exercising the contractual option to withdraw from the missives. To the extent that there were errors or grammatical infelicities in the communication, they were immaterial and were not such as to mislead a reasonable recipient as to the purpose, meaning or effect of the communication. Some of the language and grammar was acknowledged to be unfortunate. However, counsel submitted that absolute precision was not required and that, on a common sense construction, the reasonable recipient, having knowledge of the surrounding circumstances, would have understood the email as an exercise of the pursuer’s right to withdraw from the missives.
[13] Reference was made to Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749; Batt Cables Plc v Spencer Business Parks Ltd 2010 SLT 860 and AWD Chase De Vere Wealth Management Ltd v Melville Street Properties Ltd [2009] CSOH 150.
[14] I was invited to sustain the first, second and third pleas-in-law for the pursuer; grant decree of declarator in terms of the first crave of the writ; and thereafter to allow a proof restricted to quantum in relation to the pursuer’s damages claim (crave 3).
Submissions for the defenders
[15] For the defenders, counsel submitted, firstly, that the email was not formally valid as a withdrawal notice pursuant to the missives. Reference was made to Batt Cables plc, supra and Mannai, supra (at 755E-F per Lord Goff of Chieveley; at 767E-G per Lord Steyn; and at 781B-C per Lord Clyde). In short, counsel submitted that it was not sufficient for any communication to be sent by the specified means, to the specified person, by the specified deadline; the notice required to intimate that the pursuer “validly withdraws” from the missives; that the email could not, on any view, be regarded as intimating a withdrawal; and, accordingly, the notice was not formally valid.
[16] Secondly, even if the notice complied with the necessary formal requirements of a withdrawal notice pursuant to clause 3.6, nevertheless, on a proper construction, it did not constitute an effective withdrawal by the pursuer from the missives. Reference was made to the detailed wording of the email.
[17] In addition to the authorities cited for the pursuer, reference was made Gloag & Henderson, The Law of Scotland (13th ed. 2012), paragraphs 6.22-6.23; Ben Cleuch Estates Ltd v Scottish Enterprise 2008 SC 252; Yates Petitioner1987 SLT 86; and Scottish Life Assurance Co Ltd v Agfa-Gevaert Ltd 1997 SLT 1200.
[18] I was invited to sustain the defenders’ first and third pleas-in-law, repel the pursuer’s pleas-in-law in the principal action, and assoilzie the defenders from the craves of the initial writ in the principal action. In that event, it was submitted that a proof would still be required, restricted to quantum, in relation to the defenders’ counterclaim for damages (arising from the pursuer’s alleged breach of contract in failing to implement the missives).
Discussion
[19] Many contracts contain terms conferring upon, or reserving to, a party certain rights or powers exercisable on notice. Examples commonly encountered include notices to quit; notices to terminate or “break” a lease; rent review notices; notices to exercise pre-emption rights; notices triggering share buy-out or buy-back rights; and notices initiating dispute resolution procedures.
[20] When considering such notices, there are generally two issues for determination. First, it is necessary to decide whether, on a proper construction, the notice is formally valid. Second, if the notice is formally valid, it is necessary to decide whether, on a proper construction, it is effective to exercise the substantive right or power conferred or reserved by the contract. This dual or two-stage approach is illustrated in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749; Ben Cleuch Estates v Scottish Enterprise 2008 SC 252; and Batt Cables plc v Spencer Business Parks Ltd 2010 SLT 860. That said, though conceptually different, occasionally the borderline between the first and second stages can become blurred.
[21] The object of the exercise, at the first stage, is to ascertain whether the notice satisfies “the formal and technical requirements” of the empowering contractual provision (Mannai Investment Co Ltd, supra, at page 781G per Lord Clyde). In order to identify “the formal and technical requirements”, one must distinguish the words in the empowering contractual provision which express the “substance of the power” from those which specify “the method of its exercise” (Mannai, supra, at page 781B per Lord Clyde). Of necessity, this involves an exercise in construction, but for the limited purpose of identifying the particular form or specification required of the notice.
[22] An important feature of such notices is that they operate unilaterally to alter (sometimes, as in the present, to eliminate) the rights of the other contracting party. Where a contract gives one party the right unilaterally to bring the contractual relationship to an end, or to alter it in some other way, then that party must, if he chooses to exercise that right, comply with the agreed conditions or requirements for its exercise (Scrabster Harbour Trust v Mowlem plc 2006 SC 469 at page 479-480 per Sir David Edward QC). In short, such notices, operating, as they do, unilaterally to alter the rights of parties, “must comply strictly” with the terms of the empowering contract (Mannai, supra, at page 773G-H per Lord Hoffmann). Thus, to repeat Lord Hoffmann’s well-known illustration, if a clause specifies that a notice required to be on blue paper it would be no good serving a notice on pink paper, however, clear it might be (to the other contracting party or to a “reasonable recipient”) that the contractual power was being exercised (Mannai, supra, at page 776B). The reason for the rule is to enable the parties to be certain whether the event which alters the parties’ rights or legal relationship has or has not occurred (Batt Cables plc, supra, at paragraph [24]B-C).
[23] The test to be applied at the second stage is the so-called “reasonable recipient” test, as set out in Mannai. The question is not how the sender or the recipient understood the notice. The question is how a reasonable recipient, “circumstanced as the actual parties were”, would have understood the notice (Mannai, per Lord Steyn at page 768B-C). The construction of the notice must be approached objectively, in accordance with business common sense, and taking account of the relevant contextual scene (Mannai, per Lord Steyn at page 767G-H).
[24] The established legal position is that if, at this second stage, on a proper construction, such a notice “unambiguously conveys to the reasonable recipient” the exercise of the relevant power, the court may ignore immaterial errors which would not have misled a reasonable recipient (Mannai, at 768E per Lord Steyn). Put another way, even if such a notice contains errors, it may be effective if it is “sufficiently clear and unambiguous to leave a reasonable recipient in no reasonable doubt as to how and when [it is] intended to operate” (Mannai, Lord Steyn at 768G quoting Slade LJ in Delta Vale Properties Ltd v Mills & Others [1990] 1WLR 445 at page 454E-G). The test postulates that “the reasonable recipient is left in no doubt” that the right reserved is being exercised (Mannai, supra, at page 768G-H per Lord Steyn). Again, articulated in those terms, the test acknowledges the importance of such notices and, it may be inferred, enables the contracting parties to know, with some certainty, whether the event which alters the parties’ rights or legal relationship has or has not occurred.
[25] That said, it is important not to lose sight of the fact that the standard of reference is that of the reasonable man, having knowledge of the surrounding circumstances, and exercising his common sense within that factual context. Thus:
“It is not an absolute clarity or an absolute absence of any possible ambiguity which is desiderated. To demand a perfect precision in matters which are not within the formal requirements of the relevant power would… impose an unduly high standard in the framing of notices such as those in issue here. While careless drafting is certainly to be discouraged the evident intention of a notice should not in matters of this kind be rejected in preference for a technical precision.” (Mannai, supra, per Lord Clyde at page 782C-D).
[26] Applying these legal principles to the facts in the present case, clause 3.6 of the missives confers a right upon the pursuer, as purchaser, to withdraw from the missives.
[27] The word “withdraw” is not a term of art. However, on a plain reading of the words used, viewed in the context of the contract as a whole, the clause creates a locus poenitentiae, whereby the pursuer can resile from the missives, relieving itself of its primary obligation to pay the purchase price on the due date (clause 3.2) and any interest thereon (clause 3.3), and limiting the pursuer’s liability to an obligation to pay the defenders’ reasonable legal fees in relation to the proposed purchase.
[28] Turning first to consider whether the email is formally valid as notification of the pursuer’s withdrawal from the missives, I adopt the approach of Lord Clyde in Mannai, supra, by distinguishing the “substance of the power” from “the method by which it is exercised”. In the present case, on a proper construction of clause 3.6 of the missives, the “substance of the power” conferred by the clause is expressed by the words “withdraws from the missives”. In contrast, the method by which that power can be exercised is specified by the subsequent words in the clause: the pursuer’s withdrawal must be effected (i) “by fax” (or by “receipted email”); (ii) to a specified facsimile number marked for the attention of a specified person (or to a specified email address); and (iii) sent “prior to” a specified date and time. Beyond that, there is no other agreed form, specification or method. These are the sole requirements for the formal validity of a communication by which the pursuer purports to withdraw from the missives. In my judgment, the email satisfies the (fairly limited) formal and technical requirements specified by clause 3.6 of the missives. It complies with the agreed specification. To use the metaphor expressed by Lord Goff of Chieveley, the key fits the lock (Mannai, supra at pages 754A & 756B).
[29] I was urged to conclude that the email was not formally valid because it did not, on a proper construction, intimate a valid withdrawal. In my judgment, that approach is erroneous. The words “validly withdraws” in clause 3.6 add nothing to the purely formal requirements of the notice. These words explain or relate to the “substance of the power” that is capable of being exercised. Whether the notice is effective to exercise the right to resile is a matter of separate construction at the second stage, once it is determined that the proper form has been used.
[30] The second question is whether, on a proper construction of the email, it constitutes an effective notification of the pursuer’s withdrawal from the missives? To extend Lord Goff’s metaphor, though the key may fit, has it turned the lock?
[31] In my judgment, properly construed, the email does not constitute an effective notice of withdrawal pursuant to clause 3.6 of the missives. Fundamentally, the email does not convey to a reasonable recipient, clearly and unambiguously, a present withdrawal from the missives. Rather, the notice communicates little more than an ongoing state of uncertainty, deliberation and negotiation.
[32] While perfect precision, or an absolute absence of any possible ambiguity, is not required, even applying a benevolent interpretation the email fails to achieve the “necessary quality of clarity and definition” to convey to a reasonable recipient that the pursuer had indeed - then and there - withdrawn from the missives (Delta Vale Properties Ltd, supra, at page 454, citing Buckley J in Allan & Co Ltd v Europa Poster Services Ltd [1968 1 WLR 638). In my judgment, given the significant and irrevocable effect of a unilateral notice of this nature, such “clarity of purpose” is required of the notice (Scottish Life Assurance Co Ltd v Agfa-Gervaert Ltd, supra at 1203J-L per Lord Penrose). A party seeking to rely on such a unilateral notice, materially to alter the parties’ rights under the contract, cannot sit on the fence. Yet the notice in the present case is couched in language that is repeatedly unclear, tentative and inconclusive. Overall, in my judgment, the message conveyed is not “sufficiently clear and unambiguous”, on a commercially sensible construction, to leave a reasonable recipient “in no reasonable doubt” that the pursuer had indeed exercised the right to resile (Delta Vale Properties Ltd, supra, at page 454).
[33] Analysing the email in more detail, the first paragraph narrates that accounting advice had recently been received by the pursuer that:- “…the property should not be purchased by [the pursuer] as per the current agreement but by Kinch Investments Ltd (08899815)(see attached)”.
There then follows the key operative sentence. It reads:- “THUS, I understand that my client declines to consent to the missives by noon Thursday 20 February 2014 – although deliberations are ongoing.”
[34] By way of preliminary comment, I accept that the reference in this sentence to “noon Thursday 20 February 2014” is plainly referable to the deadline specified in clause 3.6. However, that reference alone does not mean that the power conferred by the clause has been exercised effectively.
[35] Firstly, and fundamentally, notwithstanding reference to the deadline in clause 3.6, whatever else it purports to do, this key sentence ends with the critical words “- although deliberations are ongoing”. In my judgment, those words are fatal to the pursuer’s assertion that the notice operated as a clear and unambiguous communication of a present withdrawal from the missives. These concluding words form part of the key operative sentence (being connected to the sentence with a dash); their effect, both grammatically and on a common sense reading, is to qualify the preceding part of the sentence; and therefore, in my judgment, reading the notice as a whole, it bears to alert the defenders to little more than a current state of thinking on the part of the pursuer which is presently inconclusive, still subject to ongoing “deliberations” and, logically, remains to be finalised.
[36] Secondly, the unclear, tentative and inconclusive nature of the communication is underlined by a number of other features in the notice.
[37] In the first place, the key operative sentence, on a proper reading, does not communicate a simple withdrawal from the missives but, rather, a statement of what the pursuer’s solicitor “understands” to be the pursuer’s current state of mind. A statement of understanding is rather less certain, rather less conclusive, and rather more tentative, than a clear, unambiguous and instructed intimation of withdrawal.
[38] In the second place, that statement of understanding relates to the assertion that the pursuer “declines to consent to the missives by noon Thursday 20 February 2014”. That is a most peculiar formulation. Prima facie it is difficult to ascribe any sensible meaning to it. As at the date of the notice, the parties were already contractually bound by the missives. There was no scope or requirement for either party to intimate any form of declinature to consent. Consensus in idem had already been reached. Clause 3.6 confers a locus poenitentiae upon the pursuer. By exercising that right, the pursuer would not have been “declining to consent” to the missives, but would, in law, have been resiling from a concluded agreement, relieving itself of its primary obligations thereunder, but retaining some liability (in the form of an obligation to meet certain legal fees). The use of the phrase “declines to consent to the missives” is simply not apt to cover the power of withdrawal conferred by clause 3.6. That apart, the words “by noon Thursday 20 February 2014” are either otiose or meaningless. I accept that the reference to that deadline within the email may tend to suggest that the phrase “declines to consent to the missives by noon Thursday 20 February 2014” is to be understood as expressing the present exercise of the power of withdrawal conferred by clause 3.6. That argument has a certain attraction. However, in my judgment that construction is defeated by the words “- although deliberations are ongoing” at the end of the key sentence, and the cumulative effect of the multiple other inconclusive and unclear features within the email.
[39] In the third place, the email goes on to ask the following question:- “What are your reasonable legal costs incurred to date which my client may have to cover?”
Again, I accept that this question is referable to the residual liability of the pursuer, in terms of clause 3.6 of the missives, in the event that the power of withdrawal is exercised. However, clause 3.6 provides that if the pursuer withdraws from the missives it “will” be liable for the defenders’ reasonable legal costs. In contrast, the question posed in the email concerns the legal costs which the pursuer “may have to cover” (emphasis added). If the pursuer had exercised the power of withdrawal under clause 3.6, the pursuer would, incontrovertibly, have been liable for the defenders’ reasonable legal costs. But the question posed in the email proceeds on the footing that the pursuer might or might not become liable to pay the defenders’ reasonable legal costs. (Interestingly, the question is also posed in the context of a wider invitation to negotiate different contract terms.) Viewed in isolation, the linguistic distinction may be semantic and inconsequential. However, viewed in the context of the email as a whole, it fortifies the conclusion that the email communicates to the reasonable recipient, having knowledge inter alia of the wording of clause 3.6, little more than an ongoing state of indecision and negotiation. It adds to the overall mist of uncertainty obscuring the message that the email purportedly seeks to convey.
[40] Lastly, some weight was attached by the pursuer’s counsel to the second sentence of the email which bears to record that accounting advice had been received that the property should not be purchased by the pursuer at all but by a related company (Kinch Investments Ltd); and to the attachment to the email which gives basic Companies House details of that related company. It was submitted for the pursuer that this fortified the conclusion that the missives were indeed being brought to an end by the email. I do not agree. The email must be construed within the relevant factual matrix; that matrix includes, of course, the missives themselves; and clause 18 of the missives (specifically of the offer letter dated 31 January 2014) obliges the defenders to deliver an executed disposition of the subjects to the pursuer “or its nominee”. The significance of clause 18 is that a reasonable recipient of the email would not necessarily conclude, from the intimated accounting advice, that the pursuer inevitably had to resile or that the missives had to be terminated. Prima facie such accounting advice (and the introduction of the related third party, Kinch Investments Ltd) would merely have raised the possibility (perhaps even the probability), to a reasonable recipient, that the pursuer may exercise its right to nominate that party as the disponee, in terms of clause 18 of the missives.
[41] In conclusion, the pursuer may well have been having second thoughts about the deal; it may well have wanted to negotiate different terms; but in order to exercise effectively the unilateral power to resile from the missives conferred by clause 3.6, it required to issue a sufficiently clear and unambiguous notice to that effect, leaving a “reasonable recipient” in no reasonable doubt that the power had been exercised. In the event, the pursuer failed to do so.
Decision
[42] For the foregoing reasons, in my judgment, the email does not constitute an effective notice of the pursuer’s withdrawal from the missives, in terms of clauses 3.6 thereof.
[43] Accordingly, I shall sustain the first and third pleas-in-law for the defender and assoilzie the defenders from the craves of the writ in the principal action. As I have not yet been addressed on the issue, I shall reserve meantime the question of expenses. As regards the counterclaim, it may be necessary to exclude from probation those averments of the pursuer which seek to assert a valid and effective withdrawal from the missives, and thereafter to allow a form of enquiry in relation to quantum. However, in order to allow parties the opportunity to seek to agree between themselves the detail of the averments within the counterclaim that ought to be excluded from probation, I propose to fix a fresh case management conference to discuss further procedure generally and to deal with the reserved issue of expenses.