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OUTER HOUSE, COURT OF SESSION

[2014] CSOH 15A

A102/10

OPINION OF LORD BRODIE

in the cause

ROBERT JAMES McCANN

Pursuer;

against

(FIRST) MESSRS WADDELL & MacINTOSH SOLICITORS and (SECOND) JOHN M MASON and (THIRD) ROGNVALD MASON

Defenders:

_______________

Pursuer: Sandison QC, Bowen QC; Brodies LLP, Gildeas Solicitors

Defenders: McBrearty QC Irvine; Dundas & Wilson

30 January 2014

Introduction
A claim for damages for professional negligence
[1] This is an action for damages at the instance of a builder and property developer against the firm of solicitors who were engaged to conclude missives on his behalf for the sale of subjects extending to 3.9 hectares at Sillyhole, Dalmellington, Ayrshire, title number AYR 71936 ("Sillyhole") to EASSDA Limited ("EASSDA") between August 2004 and September 2006.

[2] In short, it is the pursuer's case that as a result of the responsible solicitor's negligence the pursuer became bound to a contract of sale which was conditional on him obtaining planning consent for residential development on the subjects within a period of twelve months from the date of the missives, with an option to the purchasers to withdraw from the bargain in the event that consent was not obtained in that period, but with no equivalent option to the pursuer as seller to withdraw in the same circumstances. As a result, when planning consent was not obtained within the stipulated period and EASSDA did not withdraw, the pursuer remained bound to the contract and, for that reason, lost the opportunity to accept the offer of another prospective purchaser at a much enhanced price.

[3] The contract was initially concluded in terms of missives dated 27 August 2004, 1 October 2004, 29 October 2004, 9 November 2004, 11 November 2004, 20 January 2005, 31 January 2005, 10 February 2005, 18 February 2005 and 4 March 2005. The agreed purchase price was £650,000 with a date of entry fourteen days after the grant of outline Planning Consent in terms of clause 4 of the missives.

Clause 4 was of critical importance. It appeared in the purchasers' offer of 27 August 2004. It was in the following terms:

"4. It is an essential condition of this Offer that the Sellers shall obtain within a period of twelve months of the date hereof outline Planning Consent for a housing development on the subjects which Planning Consent shall not be subject to onerous conditions. If the said Planning Consent is not granted within the said time period or is granted subject to conditions which the Purchasers consider to be onerous acting reasonably, then the Purchasers shall be entitled, but not bound, to resile from the missives to follow hereon without any liability arising by one party to the other."

[4] The pursuer avers that prior to concluding missives for the sale of the subjects to EASSDA he had received no advice from the defenders regarding the meaning and effect of clause 4. The pursuer further avers:

"In particular, the pursuer received no advice from the firm on whether he could rescind the missives or on the circumstances in which EASSDA could rescind the missives. The pursuer was unaware that the meaning and effect of clause 4 was that that he was unable to rescind the missives after the expiry of the twelve month period if outline Planning Consent for residential development had not been obtained. It is commonplace for missives to include rights of rescission for both purchaser and vendor in the event that anticipated planning permissions are not obtained. Such provisions secure an equality of arms between the purchaser and vendor. No solicitor of ordinary skill and competence exercising reasonable care would have failed to advise the pursuer: (i) of the meaning and effect of clause 4 of the missives; (ii) that clause 4 only gave EASSDA a right to rescind the missives; (iii) that the effect of clause 4 of the missives was that he would remain bound by them until EASSDA rescinded them as he had no right to rescind the missives and there was no long stop date beyond which the missives would fall; (iv) that clause 4 should be amended to give him a right to rescind the missives if outline Planning Consent was not obtained within the twelve month period; and (v) not to conclude missives unless clause 4 was amended in the forgoing manner. The pursuer received no such advice from the firm. If the pursuer had received such advice from the firm he would not have concluded missives unless clause 4 was amended to give him a right to rescind the missives if outline Planning Consent was not obtained within the twelve month period. As such provisions are commonplace in missives of this nature the pursuer has no reason to believe that such an amendment to clause 4 would not have been accepted by EASSDA."

[5] The pursuer concludes for damages in the sum of £2,000,000. He instructs his loss by the following averments:

"The pursuer had difficulty in obtaining outline Planning Consent and such consent was not obtained by 31 December 2006. Accordingly, the amended missives fell and the original missives continued unaltered. On or about July 2007 the pursuer received an unsolicited unconditional oral offer from Mr Raymond Clyde on behalf of Croftmore Developments to purchase the subjects for £2,500,000. In particular, this offer was not conditional upon the obtaining of outline Planning Consent for residential development on the subjects. Croftmore Developments were confident that outline Planning Consent for residential development on the subjects would be granted by the planning authority and therefore were prepared to make an unconditional offer to purchase the subjects. Croftmore Developments had placed £2,759,055 on deposit with their solicitors. Messrs Macdonald Henderson in Glasgow, and wished to purchase the subjects without delay. Mr Clyde had the required authority to make such an offer on behalf of Croftmore Developments. If the missives had provided the pursuer with a corresponding right to rescind the missives after the expiry of said twelve month period he would have rescinded the missives and concluded new missives for the sale of the subjects to Croftmore Developments for a purchase price of £2,500,000. The pursuer re-marketed the subjects for sale. The pursuer concluded missives for the sale of the subjects to JCR Developments Limited by letters dated 15 July 2009. The date of entry was 15 July 2009 and the purchase price was £500.000."

The defence to the action
[6] The enrolled solicitor who negotiated the missives on behalf of the pursuer was Mr James Gibson.

[7] The position of the defenders is that notwithstanding that the pursuer was the proprietor of Sillyhole and that it was he for whom they were acting in respect of the sale, at all times the firm took their instructions from the pursuer's father, Robert McCann Senior, and that Mr Gibson provided full and appropriate advice to Mr McCann Senior before receiving his instructions to conclude missives on terms which included clause 4. In particular the defenders aver:

"A solicitor of ordinary skill and competence exercising reasonable care would have concluded missives on behalf of a seller which included clause 4, provided that the seller had been alerted to the effect of clause 4 and had nevertheless instructed the solicitor to proceed with the transaction. Further explained and averred that the initial offer from EASSDA was faxed to the firm on 27 August 2004. On that day, the firm's Mr Gibson telephoned Mr McCann Senior (who was instructing him in relation to the transaction) in order to advise him in relation to the offer and take instructions thereon. He advised Mr McCann Senior that clause 4 of the missives gave the purchaser the right to resile from the missives in the event of planning permission not being obtained, but that the seller did not have the same right. He advised that it was normal for both parties to have the right to resile and that the clause should be deleted and replaced with an appropriate alternative, in terms of which the same right to resile would be granted to the seller., Mr McCann Senior indicated that he did not wish to amend clause 4 in that way. He was anxious to settle the transaction and considered that the suggested revisal might discourage EASSDA from proceeding. Moreover, he advised Mr Gibson that a planning application had already been submitted and that he was confident that planning permission would be granted within the necessary timescale, so that he was not concerned that the right to resile lay only with the purchaser. Accordingly, having received Mr Gibson's advice, Mr McCann Senior nevertheless instructed Mr Gibson not to revise clause 4. On 29 September 2004, Mr Gibson and Mr McCann Senior discussed the matter further by telephone. Mr Gibson reminded Mr McCann Senior that only the purchaser would have a right to resile and that it would be necessary to obtain planning permission within the nine month time limit then set out in the missives. Again, Mr McCann approved clause 4 without revisal. On 3 March 2005, prior to the conclusion of the missives, Mr Gibson again reminded Mr McCann Senior of the fact that the seller had no right to resile. Mr McCann Senior indicated that he was happy that there was more than enough time to obtain the planning permission within the necessary period (which, by then, had been increased to twelve months) and instructed Mr Gibson to conclude the missives without revisal of clause 4."

[8] The defenders do not accept that the pursuer received an offer from Croftmore Developments, as he claims that he did.

[9] A line of defence which appears in Answer 6 of the Record to the effect that on a proper construction of clause 4 the pursuer was entitled to call on EASSDA either to implement the contract or resile within a reasonable time after the deadline for the obtaining of planning consent had passed, was expressly departed from and is accordingly not further discussed.

A factual dispute
[10] As will be apparent, the success or otherwise of this claim turns on matters of disputed fact. Later in this opinion, adopting the analysis suggested by counsel for the pursuer, I set out seven discrete factual issues which require to be determined in order to resolve the dispute between the parties but, very broadly, these issues can be compressed into two questions: first, have the defenders established that Mr Gibson gave the appropriate advice at the appropriate time to the appropriate person? and, second, has the pursuer established that he did indeed receive an offer to purchase Sillyhole in July 2007 at a price of £2.5 million? Witnesses gave conflicting accounts in relation to the first of these questions. The evidence in relation to the second of these questions was all to one effect: that such an offer was indeed made, but the witnesses speaking to that were all vigorously challenged as to their veracity. This is therefore a case which is dependent upon an assessment of the credibility and reliability of the witnesses as to fact, and what is to be made of their evidence. These are matters which I shall have to address in some detail but, first, having identified who the witnesses were, I shall set out what I held to be established by the essentially undisputed evidence, in order to provide a context for a discussion of what was more controversial.

The proof
[11] The action was raised early in 2010. It came to an eight-day diet of proof commencing on 15 May 2012. At that diet the pursuer was represented by Mr Sandison QC, and the defenders by Mr McBrearty. The pursuer was led in evidence, as were his father, Robert McCann Senior; Professor Robert Rennie, Professor of Conveyancing in the University of Glasgow; Stuart Jackson, a house builder and director of EASSDA; Raymond Clyde, a builder and property investor; and Mrs Michelle McCann or Edens, the sister of the pursuer. A continued diet of proof was fixed for 15 January 2013 but when the case called on that day I was advised that the pursuer was not in a position to proceed and Mr Sandison moved for discharge of the diet and a continuation to another diet. Against opposition on behalf of the defenders, I granted that motion on conditions. The case called again for proof at a continued diet on 5 November 2013. The pursuer was represented by Mr Bowen QC. Mr McBrearty QC, as by then he was, appeared with Ms Irvine for the defenders. The evidence of Kevin Bell, MRICS, chartered surveyor, was led as the final witness on behalf of the pursuer. James Gibson, solicitor; Donald Reid, solicitor; Mrs Jess Nisbet, an estate agent who carried on business as The Homeseller Agency; and Gordon King FRICS, chartered surveyor, were led on behalf of the defenders. The parties agreed by joint minute that the affidavit of David Flint, a solicitor and partner in Balfour + Manson LLP, be taken as the equivalent of his oral evidence. Following submissions, the proof was concluded on 14 November 2013.

Uncontroversial matters of fact
Background
[12] The background to the case was what was described by witnesses as a "buoyant" or "booming" market for the sale of land for residential development in East Ayrshire in the years immediately preceding the economic crash of 2008. The market was rising and, to judge by the evidence of the pursuer and other witnesses, quite substantial sums of money were to be made by trading in land with potential for house building; according to one of the witnesses, "land was going for crazy money". Active in that market were speculators and developers from Northern Ireland where by then prices were higher than in Scotland. Among the Northern Irish business people who came to Scotland and settled there in that period with a view to working as dealers in land and builders, were members of the McCann family: two brothers, a sister and a father. On the evidence, the McCanns were a close family who cooperated one with the other in forwarding their various business interests. While that much was clear, parties were at issue on what precisely was the role played by Mr McCann Senior.

The witnesses to fact
[13] The pursuer is Robert James McCann. He was born in Northern Ireland in 1975 and therefore was 37 years of age when he gave evidence at the proof. He first came to Scotland in 2001. He is the son of Robert McCann Senior. He is one of five siblings, two boys and three girls. All his brothers and sisters now live in Scotland. The eldest of the children is Mrs Michelle Elizabeth McCann or Edens. The pursuer's elder brother is Stephen John McCann. At the time the pursuer moved to Scotland he had been working with his brother Stephen as a roofer. The brothers came to Scotland to build a development of forty nine houses at Barony Road, Auchinleck, on behalf of a Northern Ireland company, Crossgreen Properties Limited. The pursuer was appointed as secretary (on 30 May 2003) of Regent Builders Limited, an English registered company which had been incorporated in 2002 as a vehicle for the building of houses for Crossgreen (a Northern Ireland registered Regent Builders Limited would appear to have been incorporated later in 2002, again with the pursuer as secretary). Stephen McCann was the director of Regent Builders. The registered office of the English registered Regent Builders was at the address of John Beaumont, an accountant who acted for Stephen McCann and other members of the McCann family (including Mr McCann Senior, as it would appear from the pursuer's evidence, but not so according to Mr McCann Senior). Through working on the Auchinleck site, the pursuer and Stephen McCann became involved in land acquisition in Scotland. The pursuer explained that he set up a company, XL Contracts Limited. Details from the Register of Companies give an incorporation date of 22 March 2006 for XL Contracts and the date of the pursuer becoming a director as 18 May 2006 but the pursuer's evidence that it was set up in 2004 may mean that XL Contracts was initially used as a business name. In late 2003 to early 2004 the pursuer, together with Clarence Coulter, a Northern Irish businessman, bought the shareholding of DMH Leisure Limited, the company which owned Brunston Castle Golf Club. This was the pursuer's first experience of instructing Mr Gibson of the defenders. The mechanism of acquisition of the golf club involved the incorporation of Quartzite Circle Limited to act as the holding company of DMH Leisure. Initially the pursuer was secretary and director of Quartzite Circle.

[14] Robert McCann Senior was 66 years of age when he gave evidence at the proof. He had been in business as a building contractor in Northern Ireland. He had undertaken a housing development on a 23-acre site at Ballygally, County Antrim, funded by Abbey National PLC. The development had not been a financial success due to a down-turn in the housing market and this had resulted in litigation with his funders which was finally determined against Mr McCann by a judgment of the Court of Appeal of Northern Ireland dated 13 June 1997. Robert McCann Senior described himself as being retired since about 1995 or 1996 when, he explained, he had suffered two heart attacks. In giving evidence-in-chief he indicated that he had had no involvement in site purchase prior to 1995/6 and, more specifically, had no experience of the Scottish system of land purchase. That evidence has to be given context. During his evidence the pursuer said of his father that "he had been working with the price of land all his days; that is where I got my knowledge from". The pursuer also described his father as being "good at looking at sites" and indicated that "he was not active until he came [to Scotland] in 2003", implying that after 2003 Mr McCann Senior was active in that respect. In evidence-in-chief the pursuer readily accepted that his father was "running around doing stuff for [Stephen McCann and the pursuer] ... he was doing deals for us". When Mrs Michelle Edens was referring to her father, she described him as: "quite good at talking to people". There was evidence of Mr McCann's involvement in a number of land transactions or potential transactions where the defenders were instructed to act. These related to the shareholding of DMH Leisure Limited; woodland at Brunston Castle; land at Main Street, Kirkoswald; ground at New Cumnock; and properties at Highfield Avenue, Kilmarnock, 72 Templehill, Troon, South Harbour, Ayr, and Bogside Road, Kilsyth.

[15] Stuart Jackson was 31 years of age when he gave evidence. He was a member of a family of business people in Northern Ireland whose interests included house building. These interests were held by companies which in evidence were referred to as "the Jackson group". One of these companies was EASSDA. Stuart Jackson was a director of EASSDA and "ran Scotland for the family".

[16] Raymond Clyde described himself as a builder. He carried out the business of land purchase and development in partnership with his wife, either as Croftmore Developments or Croftmore Developments Limited. He described a number of successful land transactions in Northern Ireland. By 2005/2006 he was looking to buy land in Scotland with potential for residential development. He had made a number of purchases in Scotland, one of which was a site at Ayr Road, Kilmarnock, which he bought from the pursuer. Mr Clyde's various investments were funded by some £3 million of Croftmore's own money and some £10 million of borrowing. During the period 30 July to 16 August 2007 Croftmore Developments Limited held the sum of £2,759,055 on deposit with their solicitors, MacDonald Henderson. That sum had been borrowed from the Presbyterian Mutual Society of Belfast with a view to the purchase of a site at Watson Terrace, Drongan, Ayrshire, in terms of an offer of loan dated 27 July 2007 (7/12/5 of process). Mr Clyde described himself as having a good business relationship with the Presbyterian Mutual Society and its secretary Mr Colin Ferguson.

[17] Mrs Michelle Edens had been a civil servant in Northern Ireland, working in a VAT office. She had taken a career break in 2004 and come over to Scotland to manage Brunston Castle Golf Club. She was described on more than one occasion in the pursuer's evidence as the person who "deals with the paperwork". She was company secretary and director of XL Contracts Limited. She was company secretary and a director of DMH Leisure Limited and company secretary (in succession to the pursuer) and a director of Quartzite Circle Limited.

[18] James Alexander Gibson was 70 years of age when he gave evidence. He had graduated LLB from Edinburgh University in 1965. Since being admitted as a solicitor in 1967 he has worked principally in chambers practice as a conveyancer. He was formerly a partner with Wright Johnston & Mackenzie. From 1997 he has worked as an employed solicitor with the defenders. At all relevant times it was Mr Gibson who handled transactions for members of the McCann family.

[19] Mrs Jess Nisbet has carried on business as an estate agent since 1996, latterly under the style of The Homeseller Agency. Her premises are in Cumnock. She described her business as basically residential with some commercial deals, mostly to do with land development sites. Her work includes introducing potential buyers to sellers. She has marketed houses which Stephen McCann had built at Auchinleck. She had introduced Mr McCann Senior to the Jacksons with a view to the sale of Sillyhole and she had similarly introduced Stephen McCann (who explained that he was representing his father) to Mr and Mrs Clyde, again with a view to a sale of Sillyhole.

Sillyhole
The site
[20] The Sillyhole site is set at the edge of the village of Dalmellington, Ayrshire. Dalmellington with its adjoining settlements of Burnton and Bellsbank, has a resident population of around 2800. It is located on the A713 Ayr to Castle Douglas road about 13 miles southeast of Ayr. At all relevant dates Sillyhole comprised an undeveloped green-field site of irregular but approximately triangular shape with a covering of grass and scrubland. It extends to 9.85 acres. Sillyhole was the larger of two areas of ground acquired by the pursuer at about the same time. The smaller area extended to some 3.13 acres and was referred to as "The Glebe" or the "The Sawmill".

[21] Prior to the pursuer becoming interested in the site it was understood by parties that there had been a grant of planning permission for residential development of The Glebe but that it had lapsed.

[22] Sillyhole lies within the area of the East Ayrshire Local Plan. In the current Plan, which was adopted in October 2010, Sillyhole is zoned for residential use. However, in the previous version of the Local Plan, adopted in 2003, the site was shown as an area of open countryside subject to countryside policies which were aimed at preserving the land in agricultural use. The process of evolution of the Local Plan included the publication in August 2006 of a Consultative Draft Local Plan. That Draft identified Sillyhole as a potential site for development by building fifty houses, with a proportion of these to conform to the Affordable Housing Policy, that is to be available as social housing. The significance to a developer of a requirement that a particular number of housing units must conform to the Affordable Housing Policy is that the selling price of these units will be lower than it would be otherwise. This has an adverse impact on the value of site pro rata with the number of units which must be subject to the Policy. In fact when the Local Plan was adopted no requirement for an element of social housing was imposed.

[23] On 26 February 2009 the local authority approved Modifications to the East Ayrshire Local Plan which had the result of Sillyhole being zoned for residential development.

Acquisition by the pursuer
[24] The pursuer acquired Sillyhole and The Glebe in July 2004 by virtue of a transaction, the full details of which were not completely teased out in evidence. Mr McCann Senior played a significant part. According to the pursuer, Sillyhole was initially identified to him and his brother, Stephen, by Wallace Milligan, a partner in the firm of Taylor Associates, Architects and it was he who drew it to his father's attention. The Glebe again was identified by a partner of Taylor Associates but this time it was Hugh Taylor who took Mr McCann Senior to meet the proprietors and it was Mr McCann Senior who negotiated the purchase price. The pursuer accepted that when it came to the formal purchase of the two parcels of land instructions were given to the professionals involved, Taylor Associates and the defenders, by Mr McCann Senior. At that time Mr McCann Senior was acting on behalf of County Commerce Limited. The request that the defenders act in the proposed purchase came in a letter from Hugh Taylor, dated 2 April 2004. In that letter the two parcels are described as having been purchased "by County Commerce (Mr Robert McCann)". Notwithstanding the pursuer's evidence that it was he who was initially interested, it was Mr McCann Senior who signed a manuscript agreement to purchase Sillyhole, a copy of which was included in the conveyancing file (7/17/122 of process). Formal missives were concluded for The Glebe on 7 July 2004 and for Sillyhole on 13 July 2004 (7/16/88 and 7/17/101 of process), both in the name of County Commerce Limited. However, in July 2004 Mr Gibson received instructions from Mr McCann Senior that title was to be taken in name of the pursuer and he received mandates from County Commerce Limited, dated 15 July 2004, confirming this (7/16/69 and 7/17/91 of process). Dispositions were duly delivered and the pursuer signed Land Transaction Returns in respect of each plot of land in September 2004 (7/16/10 and 7/17/40 of process).

Sale
[25] The contract for the sale by the pursuer of Sillyhole to EASSDA was concluded on the basis of an exchange of missives between Frazer Coogans, Solicitors, acting on behalf of EASSDA and the defenders acting on behalf of the pursuer. As I have already indicated, these missives are dated, respectively, 27 August 2004, 1 October 2004, 29 October 2004, 9 November 2004, 11 November 2004, 20 January 2005, 21 January 2005, 10 February 2005, 18 February 2005 and 4 March 2005. It was the letter of offer to purchase of 27 August 2004 which included clause 4.

[26] The initial offer to purchase of 27 August 2004 comprehended both Sillyhole and The Glebe at a price of £1 million but the defenders' missive of 29 October 2004 allocated a price of £650,000 to Sillyhole and £350,000 to the Glebe with different provisions as to date of entry and payment.

[27] In relation to Sillyhole outline Planning Consent was not obtained within the timescale specified in clause 4 of the missives. Accordingly, the missives were re-negotiated by the parties by letters dated 7 September 2006, 9 September 2006 and 11 September 2006. Clause 1 increased the purchase price to £800,000 if outline Planning Consent for residential development was obtained prior to 31 December 2006. Clause 3 provided that if outline Planning Consent was not obtained by 31 December 2006 the amended missives would fall and the original missives would remain unaltered.

[28] An application for residential development at Sillyhole was registered with East Ayrshire Council on 31 October 2006. As at that date it was contrary to Local Plan policy in that the relevant area was not zoned for residential development.

[29] The pursuer did not obtain outline Planning Consent by 31 December 2006 with the result that that the amended missives fell and the original missives continued unaltered.

[30] With the zoning of Sillyhole for residential development the local authority was free to determine the pursuer's application for planning consent which it did by granting outline consent on 4 June 2009. However EASSDA resiled from the contract to purchase on 17 June 2009.

[31] The pursuer re-marketed the subjects. He concluded a contract for their sale to JCR Developments in terms of missives dated 15 July 2009 with entry on the same date at a price of £500,000.

Expert evidence
Parties' approach to the expert evidence
[32] The parties led expert evidence on two topics: (1) solicitors' professional practice and what amounted to the exercise of reasonable care in the conduct of that practice; and (2) the market value of Sillyhole as at July 2007. Professor Rennie and Mr Reid spoke to solicitors' professional practice. Mr Bell and Mr King spoke to valuation. It was accepted that all these witnesses were appropriately qualified and experienced to give the evidence that they did. No criticism was made of the way in which they approached their tasks. That is not to say that the evidence which the witnesses gave was entirely uncontroversial. It was not. To an extent, Professor Rennie's evidence diverged from that of Mr Reid and Mr Bell's evidence quite clearly evidence diverged from that of Mr King. All the witnesses were vigorously cross-examined and each counsel commended the respective approaches of the witnesses which he had led, and relied on their evidence. There was however a recognition at each side of the bar that well qualified experts may differ as to, for example, acceptable professional practice or the most appropriate approach to determining market value. Accordingly, neither Mr Bowen nor Mr McBrearty suggested that the expert evidence led for the other party should be rejected and neither put forward a basis which would have entitled me to have done that. Rather, it was counsel's position that all the expert evidence could be accepted, as long as it was seen as part of a composite whole which included all the factual evidence in the case.

Solicitors' practice
[33] I heard evidence on two matters relating to solicitors' practice: first, the advice which should be given to a client selling property faced with an offer containing a suspensive condition in the terms of clause 4; and, second, whether a solicitor should accept instructions to conclude missives on behalf of his client when these instructions come through an intermediary. In relation to the first matter the expert witnesses were agreed as to what advice should be given and I have simply accepted that evidence. In relation to the second matter, while not doubting the soundness of what either witness said, I have come to the view that what was being discussed did not properly come within the province of what can be determined by opinion evidence. Rather, it fell to be determined by the application of the law of agency to primary facts.

[34] In his Opinion, 6/8 of process, and as he confirmed in his evidence, Professor Rennie sets out the duties of solicitor of ordinary competence acting with ordinary skill and care in relation to the sale of land for development where the offer to purchase is subject to a suspensive condition. Generally speaking, these are: to advise as to the meaning and effect of the suspensive condition and in particular to advise on any time limits imposed for the purification of such a condition; to advise on who had the obligation to take the steps necessary for purification, in this case to make application for planning permission; to advise that there should be a longstop date within which the condition must be purified so that the parties would not be left in a situation where was doubt as to their legal position; and to advise on the legal effect of the condition not being purified. In relation to clause 4 in the missives in the present case the duties of the defenders were: to advise that in the event that planning permission was not obtained within the twelve month period only the pursuers could resile but the seller could not; to advise that if the planning permission was not obtained within the time limit an issue would arise as to how long the missives would remain enforceable; to advise that until the purchasers resiled the seller would be bound in the missives and therefore could not sell to any other party with the result that there would be uncertainty as to the legal position; and to advise that clause 4 did not represent the normal suspensive condition for a sale and purchase of this type.

[35] Essentially, Mr Reid agreed with Professor Rennie's analysis of the particular duties of a solicitor in the position of the defenders who had received an offer to purchase subject to a suspensive condition in the form of clause 4. For that reason, as Mr Reid put it in his opinion letter of 28 March 2012, 7/18 of process, there is a case against the defenders which they have to answer. In other words, if the defenders are not to be found to have been negligent they must show that, at least in substance, they did indeed give the advice specified by Professor Rennie.

[36] Whereas Professor Rennie and Mr Reid were more or less at one on what advice should be given to a seller faced with an offer to purchase subject to a suspensive condition in the form of clause 4, there was a difference of view in relation to the separate question of whether a solicitor of ordinary competence exercising reasonable care can properly take a client's instructions to conclude an onerous contract such as the sale of heritage, through an intermediary. The evidence of Professor Rennie in chief was that a solicitor should never take instructions from an intermediary without express antecedent authority having been given to do so. He instanced the grant of a power of attorney as an example of such express authority. In the event of the circumstances averred by the defenders in the present case, with Mr McCann Senior purporting to give instructions on behalf of his son, Professor Rennie would have expected the defenders to have written to the pursuer, as their client, setting out the risks associated with contracting in terms of clause 4 and seeking confirmation of the instructions received from Mr McCann Senior. The reason for doing this was to ensure that the client did indeed understand the risks of proceeding in this way, although recording his advice in writing also provided protection for the solicitor in the sense of documenting the advice given lest there be any dispute as to what had been said in the course of advising orally. In cross-examination, Professor Rennie conceded that necessary advice might be given orally without the solicitor being in breach of duty. He recognised that as a matter of law an agent might have authority to instruct a solicitor on behalf of his principal but he emphasised the problem for the solicitor in knowing the extent of the agent's authority. The relationship between client and solicitor is a special sort of agency and the solicitor has to have the sort of certainty as to his position which is conferred by instructions in writing. The relevant Law Society of Scotland Code of Conduct advised against taking instructions through an intermediary; a solicitor just should not do it. Professor Rennie disagreed with the proposition that a solicitor of ordinary competence exercising reasonable care could properly take instructions from a father to conclude missives on behalf of a son on the basis of a course of conduct which indicated that the father repeatedly purported to act on his son's behalf and that the son was content with that.

[37] Mr Reid disagreed with Professor Rennie on what was necessary before a solicitor could regard himself as instructed in a matter such as the conclusion of missives. In his opinion a solicitor would be entitled to make what he referred to as "a judgment call" as to whether he did have his principals' authority on the basis of all of the facts and circumstances of the case.

[38] Mr Bowen relied on Professor Rennie's evidence for a submission that even if the court were satisfied that there was a practice whereby Mr Gibson did in fact accept instructions from Mr McCann Senior without objection from the pursuer, the defenders were nevertheless in breach of duty, at least in the instance of the sale of Sillyhole, by reason of not having obtained the pursuer's written confirmation of his authority to conclude the transaction.

[39] Mr McBrearty, for his part, submitted, under reference to the law as stated in Honisz v Lothian Health Board 2008 SC 235 and Bothwell v DM Hall [2009] CSOH 24, that it was not for the court to prefer the evidence of either Professor Rennie, on the one hand, or Mr Reid, on the other. It was Mr McBrearty's submission that Mr Reid's views could not be criticised as illogical or without foundation. Accordingly, given Mr Reid's unchallenged expertise, his evidence provides support for the conclusion that, in advising Mr McCann Senior in relation to clause 4 (assuming that that is what Mr Gibson did) Mr Gibson was acting in a manner consistent with the standard to be expected of an ordinarily competent solicitor, acting with ordinary care. Mr Reid's view should be taken as representing that of a responsible and experienced practitioner. The pursuer could only succeed on the narrow issue of advice not having been given to him rather than his father, if the court were able to conclude that Mr Reid had somehow failed to analyse the basis for his views and that these views did not hold up on logical scrutiny. On the contrary, submitted Mr McBrearty, Mr Reid's views were carefully reasoned and had regard to the consequences of the solicitor getting the judgment call wrong (ie if he purported to contract with a third party on behalf of a client who had not in fact given him authority to do so, the solicitor would be liable to the third party for damages for breach of warranty of authority). Mr Reid had recognised that to obtain express authority would avoid problems and that it might be preferable to do so, but that did not in any way detract from the force of his evidence that it would be permissible to proceed without that express authority, not least having regard his evidence that problems very rarely arise in practice.

[40] I recognised the prudence of the practice advocated by Professor Rennie and the practicality of the practice considered acceptable by Mr Reid. Had it been necessary for me to determine whether the method of giving advice and taking instructions spoken to by Mr Gibson constituted a breach of duty, as identified in Hunter v Hanley 1955 SC 200, by reference to the opinion evidence given by Professor Rennie and Mr Reid, I would have been obliged by the authorities discussed in Honisz to find that Mr Gibson had not been negligent in this regard. However, as counsel and the experts themselves essentially accepted, the issues here: whether the pursuer was given or should be taken to have been given the appropriate advice about clause 4, and whether he authorised or should be taken to have authorised the conclusion of missives which included clause 4, are questions either of simple primary fact, or of mixed primary fact and law, there being no legal rule that a solicitor cannot be instructed on behalf of a client by way of an intermediary. They are not issues which can be determined by evidence as to what does or does not conform to acceptable professional standards.

Valuation of Sillyhole
[41] The purchase price agreed for Sillyhole in terms of the missives concluded on 4 March 2005 was £650,000. The price under the amended missives concluded on 11 September 2006 was £800,000. These prices assumed outline planning permission for a commercially viable residential development.

[42] Both parties led expert evidence as to market value. Mr Kevin Bell, MRICS gave evidence on behalf of the pursuer under reference to his report dated 16 April 2012, 6/9 of process and Gordon King FRICS gave evidence on behalf of the defenders under reference to his report dated 13 April 2012, 7/35 of process. Mr Bell considered two valuation dates, September 2006 and July 2007 but he came to the same figures for both dates: £2,100,000 with the benefit of outline planning permission, and £2,000,000 with the benefit of zoning for residential development. Mr King considered only one date, July 2007. His valuation was £500,000.

[43] As I have already indicated, notwithstanding the apparent disparity in the figures neither Mr Bowen nor Mr McBrearty asked me to come to a view as to which valuation was correct or even preferable. The significance of the July 2007 date was that that is when it is alleged that Raymond Clyde offered to purchase Sillyhole at a price of £2,500,000. Accordingly, the relevance of the valuations was that they might bear on the question as to whether it is probable that Raymond Clyde did in fact make the offer he claimed to have made, a question to which I shall have to return. Counsel recognised that Mr Bell and Mr King had taken rather different approaches to the assessment of market value but did not seek to commend one over the other. Mr Bowen's position was that the valuation evidence could not directly challenge the evidence of the pursuer and Mr Clyde that an offer £2,500,000 had been made for Sillyhole in July 2007. It may not have been a prudent offer but it was an actual offer by someone who was prepared to speculate in the value of the land on what appeared to be a buoyant market. For his part, Mr McBrearty did not seek to criticise Mr Bell's conclusion but he pointed to the optimistic assumptions on which that conclusion was based. These were not assumptions that any prudent purchaser would have made. Much more realistic was the approach taken by Mr King and the lower figures which that approach produced.

The principal issues for determination
[44] In presenting his overview of the case, Mr Bowen identified seven factual issues derived from the pleadings which required to be determined for a resolution of the case. These were as follows: (i) whether the pursuer received no advice from the defenders regarding the meaning and effect of clause 4 of the missives; (ii) whether Mr McCann Senior had authority to conclude missives on behalf of the pursuer; (iii) whether Mr Gibson advised Mr McCann Senior on 27 August 2004 that clause 4 gave the purchaser but not the seller the right to resile in the event that planning permission was not obtained, that it was normal for both parties to have the right to resile and that the clause should be deleted and replaced with an appropriate alternative in terms of which the same right to resile would be granted to the seller but that Mr McCann Senior instructed Mr Gibson not to revise clause 4; (iv) whether Mr Gibson reminded Mr McCann Senior on 29 September 2004 that only the purchaser would have the right to resile and that it would be necessary to obtain planning permission within the nine month planning permission then set out in the missives and Mr McCann Senior approved clause 4 without revisal; (v) whether Mr Gibson reminded Mr McCann Senior on 3 March 2005 and prior to conclusion of missives that seller had no right to resile and that Mr McCann Senior instructed him to conclude missives without revisal of clause 4; (vi) whether if the pursuer had received such advice from the defenders he would not have concluded missives unless clause 4 was amended to give him a right to resile if outline Planning Consent was not obtained within the twelve month period; and (vii) whether in July 2007 Raymond Clyde on behalf of Croftmore Developments orally offered the pursuer £2.5 million to purchase the subjects without outline planning permission which offer the pursuer was unable to accept because he did not have a right to resile from the missives.

[45] I propose in large part to follow the structure suggested by Mr Bowen's list of issues. Their resolution depends on the credibility and reliability of the factual witnesses and what is to be made of their evidence. It is to a preliminary general evaluation of these witnesses that I shall shortly turn but before doing so I would make a general observation. When assessing apparently conflicting evidence, it is natural to look for explanations in difficulties with memory or in honest mistakes as to facts or impressions rather than to adopt the harsher assessment that witnesses have been deliberately dishonest. Certainly, that is my own first instinct. However, that is not a course which I was encouraged to follow in the present case. The position taken by both counsel was that the witnesses whose evidence was criticised had lied rather than simply been mistaken, and it is therefore upon that basis that it was submitted I should approach my evaluation. That being so, I have given particular consideration as to who should be believed.

The witnesses as to fact: evaluation of credibility and reliability
James Gibson
[46] I shall begin with Mr Gibson, as Mr Bowen invited me to do. He is an important witness. He requires to be accepted if the defenders are to have a defence on the question of liability. His evidence therefore requires to be scrutinised with particular care. A touchstone of that evidence, for both Mr Bowen and Mr McBrearty, was what appears in Mr Gibson's various file notes. Mr Gibson explained that the theory of his practice at the relevant time was to record any discussion about a transaction in a note for inclusion in the appropriate file. Sometimes these notes were in manuscript but they were more usually, and by 2005/6 when the defenders "were computerised", always, dictated, pretty well immediately after the event, and then typed up, usually the following day. That was the theory. Mr Gibson admitted that his practice sometimes fell short of his theory; however, it was his position that while he may have failed to record some telephone calls, all meetings and important instructions were recorded.

[47] Significantly, while Mr Bowen submitted that the only proper inference from Mr Gibson's evidence was that he was not telling the truth about the critical issues in the case, Mr Bowen did not suggest that any file notes had been fabricated. Rather, Mr Bowen's approach was to accept the file notes as genuine (although perhaps not inevitably correctly dated, something Mr Gibson himself conceded) and to rely upon what did not appear in the notes as an indication of advice that had not been given. It appears to me that this approach to the file notes has important implications for what is to be made of the evidence of other witnesses whose instructions to or other interactions with Mr Gibson bear to be recorded in the file notes. While I do not suggest that Mr Bowen can be held to have conceded the factual accuracy of everything that appears in the file notes, I do take him to have accepted that the file notes were honestly and more or less contemporaneously compiled. That would in any event have been my independent assessment of the file notes, based on their contents and frequency, and what I took from the way in which Mr Gibson gave his evidence. Mr Gibson's demeanour was that of a careful conveyancer, albeit one facing the stress of an action for professional negligence. I had no difficulty in accepting the complete accuracy of his "Absolutely not"; to Mr McBrearty's question "Have you fabricated any file note?" Mr Gibson gave his evidence in an apparently straightforward manner and I would accept, as Mr McBrearty submitted, that there were occasions when he could have answered in a manner which could have supported the defenders' case, but did not do so, something which pointed to his wish to be accurate in his evidence as opposed to taking any opportunity to advance the defenders' case. Such a view of Mr Gibson would be consistent with my general impression of him as a witness; someone who thought about the questions and who was considered in his answers without being unduly cautious or defensive. There was nothing in his demeanour while giving evidence that suggested that he was doing other than attempting honestly to answer the questions that he was being asked. I found nothing internally inconsistent in his evidence.

[48] However, the crucial part of Mr Gibson's evidence related to the advice that he said he gave to Mr McCann Senior and which Mr McCann Senior denied having received. Mr Bowen was very critical of this aspect of Mr Gibson's evidence. Mr Bowen squarely put to Mr Gibson that he was being untruthful and in support of that proposition both during cross-examination and in submission Mr Bowen pointed to what he identified as inconsistencies between what Mr Gibson had said and the available documentation. The points made by Mr Bowen were as follows. In evidence-in-chief Mr Gibson had formulated the advice that he said he had given to Mr McCann Senior about clause 4 by telephone on 27 August 2004 in terms of an explanation that if Mr McCann did not get planning consent within the time specified he "would be stuck with the contract and would not know how to go forward". No doubt reflecting that formulation, when Mr McBrearty was taking the evidence of Mr Reid he put to him a summary of the advice said to have been given by Mr Gibson to Mr McCann Senior in these terms:

"If Mr Gibson had advised that, in relation to clause 4, the purchaser and not the seller had the right to resile, that resile meant to pull out, that the seller should also have the right to resile, that the absence of a double-sided right to resile would lead to difficulties or uncertainty with the seller being stuck with a contract which was not working and that the clause should be amended..."

Referring to that summary, Mr Bowen pointed out that that was not what had been pled, at least not in its entirety. In Answer 4 it is averred:

"[Mr Gibson] advised Mr McCann Senior that clause 4 of the missives gave the purchaser the right to resile from the missives in the event of planning permission not being obtained, but that the seller did not have the same right. He advised that it was normal for both parties to have the right to resile and that the clause should be deleted and replaced with an appropriate alternative in terms of which the same right to resile would be granted to the seller."

Mr Bowen emphasised that what was omitted from the pleadings was any reference to Mr McCann Senior being "stuck with a contract that was not working". Similarly there was no reference in the summary given by Mr Reid in his report (7/18 of process) of the advice he understood that had been given by Mr Gibson (presumably based on Mr Gibson's precognition) to a contract "which was not working". Further, submitted Mr Bowen, the defenders' averment in Answer 4 that on 27 August 2004 Mr McCann Senior instructed Mr Gibson not to revise clause 4 was inconsistent with Mr Gibson's evidence that he had received no instructions following the telephone conversation on that day. Moreover, while Mr Bowen accepted that Mr Gibson had not been asked any questions about this inconsistency either in chief or in re-examination, whereas Mr Reid's evidence was that, in relation to the letter of 14 October 2004 (7/32/294 of process) the precognition of Mr Gibson which had been provided to him stated that "this adjustment was never proposed or instructed to them by Mr McCann himself" and that he took from that statement that no advice had been given in relation to clause 1 of that letter (something consistent with the fact that the pleadings make no reference to it), Mr Gibson's evidence was that he did in fact give advice. In addition, Mr Bowen pointed to the absence of any unequivocal reference to the advice he claimed to have given in any file note or any letter. According to Mr Bowen, the inconsistencies which he had identified and the facts that (i) Mr Gibson had omitted to note the advice that he said he had given on at least three occasions, and (ii) failed to note the details of his purported advice on two further occasions, meant that his evidence on this central issue was not credible. I shall have to return to a consideration of that submission later in this opinion and in doing so I shall address the allegation that Mr Gibson had freely conceded to the pursuer and Michelle Edens that it was his fault that clause 4 had been retained in the missives, something Mr Gibson unequivocally denied, but first I shall say something about the other witnesses in the case.

The pursuer
[49] The pursuer presented as a practical sort of man. During the relevant period he had been working in Scotland as a site agent and it would appear from the evidence that that had kept him busy. Asked by his counsel whether he regarded himself as "a paperwork sort of man", he answered in the negative. He was rather quick to agree with propositions put to him and did not appear to give too much thought to precisely what it was he was being asked, or to the internal logic of his answers. There was carelessness about some of his answers, at least when they are considered as evidence given in court. For example, when during cross-examination about the transaction for the acquisition of woodland at Brunston, he was asked in whose name title was taken he answered "Mine" and then "I am not sure"; then, in answer to the question "Do you know in whose name title was taken?", "No"; and then when Mr Gibson's file note of 13 July 2004 (7/57 of process) was placed before him: "Yes the woodlands would be put in my name." Importantly, the pursuer did not appear to face up to the potential complexity in his affairs introduced by his father's involvement. An example of this can be seen in a passage of evidence essentially volunteered by the pursuer during cross-examination. Speaking of Mr McCann Senior the pursuer said:

"He did do deals for me ... he could make an offer on my behalf [but it] makes no difference till it comes to the crunch."

The explanation given by the pursuer that it makes no difference until it "comes to the crunch" was discussed during final submissions without any very satisfactory resolution from the pursuer's perspective. The matter had been taken up in re-examination and from answers given there I understood the pursuer to have confirmed that he was referring to a formal and therefore potentially binding offer. No doubt it is true, as the pursuer appeared to assume, that it will be unusual for an arms-length offer for land for development to receive an immediate unconditional acceptance and that therefore "the crunch", in the sense of conclusion of a contract, will be postponed. However, as Mr Bowen at the stage of final submissions had to accept, that is not necessarily the case. I had difficulty in understanding how what the pursuer was describing might work in practice. He conceded that his father had at least a certain amount of authority to act on his behalf. As well as "doing deals" for him, the pursuer accepted in cross-examination under reference to the file note of 3 March 2005, 7/29/7 of process, that Mr McCann Senior had authority to give instructions in relation to the grant of a servitude of access to the Sawmill site. Nevertheless, in an immediately preceding passage of evidence, the pursuer confirmed his position as being that it was he who would give instructions "at the point of conclusion of the missives". In fact 3 March 2005 was the point of conclusion of the missives. It was hard to escape the conclusion that the pursuer had not really thought through the consequences of his business practices or, for that matter, the implications of some of his evidence.

[50] Mr McBrearty went somewhat further and submitted that the pursuer should not be taken to have told the truth in relation to all of the critical issues and that close attention should be paid to his evidence in a number of respects.

[51] According to Mr McBrearty, in answering questions about his father's previous litigation history, the pursuer showed a tendency to avoid difficult issues: in cross-examination (near the beginning), his position was that he knew very little about the action involving his father and Abbey National. When asked what he knew about it, he answered:

"Not an awful lot. I was 15 or 16 then. They were suing my father and he was counter-suing them. That's the height of my knowledge of it."

Yet in cross-examination Mr McCann Senior stated that the whole family knew all about it, including the pursuer. I do not attach importance to these exchanges. I was not persuaded that the pursuer's answer was necessarily inconsistent with what his father said.

[52] On the other hand, I found some of Mr McBrearty's criticisms more pertinent. He submitted that the pursuer had sought to minimise his father's part in the transaction for the purchase of Sillyhole. I would accept that submission. The pursuer's evidence in chief was that it was he who had been involved in the purchase of Sillyhole and the smaller site at The Glebe from the outset. Wallace Milligan had approached him and his brother Stephen. The pursuer said it was he who had showed the sites to his father. Mention was made of County Commerce Limited as a possible lender. It was to be in Stephen McCann's name but he was too busy to go through with the proposal. However, the pursuer departed from that, admittedly very broadly sketched out, position under cross-examination when reference was made to the defenders' files for the purchase of The Glebe (7/16 of process) and Sillyhole (7/17 of process). As Mr McBrearty came to submit, and as the pursuer conceded, initially Mr McCann Senior instructed Mr Gibson in the name of County Commerce Limited, reached agreement with the seller of the land on 9 June 2004 and, after missives were concluded in the name of County Commerce, instructed first that title should be taken in the name of Stephen McCann and then that it be taken in that of the pursuer. Number 7/17/122 of process was the heads of terms agreed with the seller of Sillyhole. The pursuer initially identified the signature as his but then had to accept that it was his father's when presented with a separate example of father's signature at 7/33/367 of process. I was left with the impression that the pursuer's account of events was, at best, a simplified and selective one, informed by hindsight and the exigencies of this litigation. On the basis of what I saw as the pursuer's avoidance of complexity and lack of precision when giving evidence, I did not regard him as a very reliable witness.

[53] Critical to the success of the pursuer's case is that he establish that Raymond Clyde offered to buy Sillyhole at a price of £2.5 million in July 2007. The pursuer's productions include a letter from Raymond Clyde under the letterhead of Croftmore Developments dated 18 August 2009 (6/5 of process). It is headed "Our land deals with you in Scotland" and refers to Ayr Road, Kilmarnock and Sillyhole, Dalmellington. In relation to Sillyhole there is this:

"9.5 acres building land with offer to purchase in 2007 for the sum of 2.5 million pounds. We put on deposit with our solicitor the sum of 2.5 million pounds. Which remained with our solicitor for four weeks, until you conveyed to us that you could not complete on the deal because of a mix up with your contract with the Jackson group.

We write to confirm that the 2.5 million loan which we put with our solicitor has incurred interest and fees of around £25,000. As the failure of the deal has nothing to do with us we demand the sum of 25,000 pounds from you within 21 days.

Failure to comply with this request will force us to go legal which will incur further costs which we will claim from you."

In cross-examination the pursuer was asked whether this demand came as a surprise, to which, as I noted him, he replied "It certainly did". He continued, as I noted him, "I do not know if Mr and Mrs Clyde were asked to write supporting my claim [in the present litigation]" and then "I got a letter [6/5 of process] sitting in my house and I could not believe it". However, on the evidence of Raymond Clyde, that letter had been discussed with the pursuer and written at his request; as Mr Clyde would have it, both to clarify the £25,000 which he said was owed and to support the pursuer's claim. While he also had criticisms to make of Mr Clyde's evidence (as noted below), it was Mr McBrearty's submission that the pursuer's evidence about the letter could not be reconciled with what had been said by Mr Clyde and should be regarded as a very significant failure on the part of the pursuer to tell the truth in relation to a matter which went to the heart of the loss that he claimed to have suffered. I see the force of that submission. While some of the pursuer's answers can be explained by what I have described as carelessness, that is not so in the case of the pursuer claiming to have no knowledge about the Clydes being asked to provide assistance with the pursuer's claim against the defenders. The tenor and timing of the Croftmore letter of 18 August 2009 is eloquent of it being produced specifically for the purpose of helping the pursuer in the present case. Mr Clyde came to confirm that that indeed was so, and that it had been written in response to a direct request by the pursuer. I would hold that to be proved. That the pursuer effectively denied this of itself raises a question as to his general credibility but in particular as to his credibility in relation to the critical matter of whether Raymond Clyde did in fact make a serious offer to buy Sillyhole at a price of £2.5 million. I attach little importance to the bare fact of the pursuer requesting Mr Clyde's assistance. It is by no means unknown for parties to adopt some artifice in the attempt to embellish what may be a perfectly good case. The present example is perhaps more indicative of a surprising degree of naivety on the part of two experienced businessmen than anything else. However, what is much more significant is what I consider Mr McBrearty was entitled to describe as a failure on the part of the pursuer to tell the truth. Just as I concluded that there was a question about the pursuer's reliability I concluded that there was a question about his credibility.

[54] An aspect of the pursuer's evidence bearing on his credibility, and also on the credibility of Mr Gibson and Michelle Edens, was his claim that in or about June or July 2006, Mr Gibson acknowledged to him that he had "made a mistake" in allowing the missives for the sale of Sillyhole to have included clause 4 in an un-amended form. Further, according to the pursuer, Mr Gibson told him on numerous occasions that he expected the pursuer to sue him and that, again in or about June or July 2006, Mr Gibson told him that he was "seeking legal advice to cover his own back and look after the firm". Mr McBrearty put it to the pursuer that this was a lie; and moreover that it was unlikely that Mr Gibson would have acted (as he had) for the pursuer in a transaction which involved transferring land out of his name in 2009 if he had believed that the pursuer was about to sue him. The pursuer was supported in his account of Mr Gibson having admitted making a mistake by Michelle Edens, who in many ways I considered a quite impressive witness. However, for reasons that I shall discuss more fully when assessing Mrs Edens's evidence, I do not find it probable that Mr Gibson made the admissions that they claim that he made. This reflects adversely on the pursuer's credibility or at least reliability, as it reflects adversely on the credibility and reliability of Mrs Edens. Looking at matters overall, I have been unable to accept the pursuer as either entirely credible or entirely reliable.

Robert McCann Senior
[55] Neither could I accept Mr McCann Senior as a necessarily credible and reliable witness. He was clearly anxious to negative the suggestion that it was he who had given the critical instructions in relation to the sale of Sillyhole and in relation to other transactions. This led him to adopt the extreme position, which Mr McBrearty characterised as his "default position", which was to say when shown a file note that what was recorded was unlikely to have happened or that the conversation could not have taken place. As Mr McBrearty put it, Mr McCann Senior's responses were "not nuanced". There was force in Mr McBrearty's submission that if Mr McCann were to be correct in many of his answers, it would be difficult to avoid the conclusion that Mr Gibson must have engaged in a deliberate course of fraudulently preparing file notes. As I have already observed, that was not Mr Bowen's position on the file notes and, as Mr McBrearty reminded me, such an allegation was not put to Mr Gibson in cross-examination. Moreover, as I will touch on, not only was Mr McCann Senior's evidence contradictory of what appeared from the file notes, it was contradictory of what was spoken to by Jess Nesbit and, at least in some respects, by the pursuer. My impression was of a witness who was trying just a little too hard to assist the case on behalf of which he had been led.

[56] Mr McCann Senior presented as a shrewd man of business with an eye for a good deal and the negotiating skills to conclude it. He was conversant with the planning history of Sillyhole and he claimed to have been in a position to assess the likelihood of a grant of permission for residential development as at August 2004. As I have already observed, when Michelle Edens came to give evidence she acknowledged that her father was "quite good at talking to people". I could readily believe that. It is true that Mrs Edens also suggested that her father was something of a spent force: "He has not worked since I do not know when ... he thinks he can give advice on everything ... he is trying to help". However, while, as was explained in evidence Mr McCann may have difficulties with his physical health (he said that he had suffered two heart attacks), in the witness box he appeared mentally sharp and energetic, with little doubt as to which side of the case he favoured. He was very alert to avoid answering questions in a way that might harm the pursuer's position. A feature of Mr McCann's evidence was the robust way in which his answers were often couched - "Nonsense", "It never happened". By way of specific example, when asked in evidence-in-chief whether he had ever instructed Jess Nisbet, his answers, as I noted them, were:

"Definitely not, never ... she did send me a buyer, I cannot remember where, I think Ayr Road, Kilmarnock which had nothing to do with me".

This can be contrasted with Mrs Nisbet's evidence. According to her, and this is consistent with the terms of her invoice and correspondence (7/25/2, 7/25/6, 7/25/11 and 7/25/12 of process), it was Mr McCann Senior who instructed her in relation to the marketing of Sillyhole.

[57] Mr McBrearty developed his attack on the credibility of Mr McCann Senior by reference to the documentary evidence and in particular Mr Gibson's file notes. He instanced a number of examples of what he submitted was the unsatisfactory nature of Mr McCann Senior's evidence when faced with file notes which bore to record his involvement in property transactions and which had not been challenged as fabrications. On being asked about 7/57 of process, a file note dated 13 July 2004, which recorded instructions from him to put the title of the woodlands into the pursuer's name, Mr McCann Senior first gave evidence that he had no idea if it happened. He then denied it: "No such meeting ... I cannot understand it, none of this happened". In relation to 7/5 of process, the follow-on instructions, he stated that he did not have the meeting with Mr Gibson which is recorded there: "I am saying this meeting did not happen." Contrary to what is recorded in 7/59 and 7/62 of process in relation to instructions from Mr McCann Senior to offer for land at Kirkoswald in name of Regent Builders Limited, Mr McCann Senior's evidence was that he definitely did not instruct Mr Gibson to make the offer. Number 7/29/5 of process is a file note dated 15 March 2006. It records that Mr McCann Senior was advising that a particular deal should be done with Jones Finance whereas Mr McCann Senior's evidence was that he would not have agreed that deal with anyone. He added the comment: "Mr Gibson says more than his prayers", in other words, Mr Gibson was lying. Similarly, in relation to 7/29/4 of process, a file note of 21 April 2006, the final sentence in the penultimate paragraph in which states: "Noting Mr McCann ... prepared to give security over Kilmarnock site..." Mr McCann Senior disagreed that he would have said that, the file note had to be wrong. There were responses similarly lacking in nuance in Mr McCann Senior's repudiation of what was recorded in 7/29/3, 7/67 (a file note dated 6 July 2005 relating to Bogside Road, Kilsyth: "I do not even know where Kilsyth is", and 7/50 (a file note dated 22 July 2003 relating to the purchase of ground at New Cumnock). It is to be observed that the answers given by Mr McCann Senior about the Kilsyth and New Cumnock properties would seem to be at odds with the answers given by the pursuer whom I took to accept that in relation to these transactions Mr McCann Senior had indeed given instructions to Mr Gibson to make offers.

[58] I shall have more to say about Mr McCann Senior's evidence about his involvement in giving instructions in relation to the missives for the sale of Sillyhole, but for present purposes I would note that there his initial position, as it was with other transactions, was to distance himself from any involvement whatsoever. That, as Mr McBrearty submitted, was to be contrasted with him later coming to accept at least the possibility that the discussions between him and Mr Gibson which are recorded in the file notes 7/29/6 and 7/29/7 indeed took place, respectively on 28 October 2004 and 3 March 2005. Overall, I was left with an impression of a general lack of candour on the part of Mr McCann Senior.

Stuart Jackson
[59] Mr McBrearty described Mr Jackson as an impressive and careful witness. Mr Bowen did not demur. I am happy to agree with Mr McBrearty's assessment. There was no issue between the parties but that his evidence should be accepted in full.

Raymond Clyde
[60] It came to be Mr McBrearty's submission that Mr Clyde's evidence on the critical matter of an offer being made for the purchase of Sillyhole in July 2007 was wholly unsatisfactory and simply should not be relied upon. However, during all of his evidence-in-chief and much of his cross-examination, Mr Clyde presented as a relaxed and confident witness despite the fact that he was speaking to what to the uninstructed listener might appear to be the inherently improbable proposition that an agreement for the sale of un-zoned land had been struck at a price which was on any view well above its market value even had outline planning permission been granted (which it had not been), on no more rational principles than that it represented a splitting of the difference between the seller's proposal of £3 million and the buyer's proposal of £2 million and that the buyer happened to have something in excess of £2.5 million on deposit with his solicitors. Mr McBrearty mounted a sustained cross-examination, informed by the evidence available to him from Mr King's report, which focused on the various uncertainties associated with developing Sillyhole for housing as at July 2007 but Mr Clyde, while accepting that he would have had to take professional advice on a number of matters before actually developing the site, maintained the robust assertion that he did indeed make an offer of £2.5 million, the offer admittedly being informal but nevertheless meant seriously. He accepted that he did not know whether there might be special costs associated with the development but that was "the gamble you take with un-zoned land". He thought the £2.5 million price cheap.

[61] Mr Clyde faltered only once during the initial part of his evidence, when in evidence-in-chief he was asked whether the proposed purchase of the site at Watson Terrace, Drongan, for which the funds held by MacDonald Henderson had originally been allocated, had gone ahead. He replied that it had not, and when asked why that was so he said that he had "never got to the bottom of that". In a previous passage of evidence Mr Clyde had mentioned a "hiccup" in relation to Drongan. He said that he had talked to Presbyterian Mutual and told them about it. They were "happy to allow me to keep the funding in place". The matter was not further explored.

[62] However, Mr Clyde was less impressive when responding to the line in cross-examination that he had assisted the pursuer with his case by generating three letters, two from his solicitors, Messrs Lindsays, dated respectively 19 and 28 May 2010 (7/8/6 and 7 of process) and the other the letter on the Croftmore Developments letterhead dated 18 August 2009, about which the pursuer had been asked. As far the letters from Lindsays were concerned, Mr Clyde's initial position was that he had requested those letters in order to support his claim against the pursuer for the recovery of interest and fees associated with the drawdown of the funds held by MacDonald Henderson (stated in the letter of 18 August 2009 at "around £25,000"). This was a claim which had first been made in November 2008 and, even as at the date when Mr Clyde gave his evidence had apparently not been met. Mr McBrearty was to go on to challenge whether Mr Clyde had any basis for such a claim against the pursuer, but initially he sought and obtained confirmation from Mr Clyde that it was Mr Clyde's position that the letters from Lindsays were written in support of a proposed claim against the pursuer, as opposed to the claim now being made by the pursuer against the defenders. Mr McBrearty then put to him that that was a lie. Mr Clyde denied that. However, within the space of a few minutes Mr Clyde's position had changed. He accepted in terms that he had been asked directly by the pursuer to confirm that he had the necessary funds to purchase Sillyhole in July and that he knew that this information had been requested for the purpose of supporting the pursuer's claim against the defenders. The questions either by Mr McBrearty or the court and the answers from Mr Clyde included the following:

Q - "You requested this letter in support of the pursuer's claim. There was no other reason for you to do so?"

A - "That's right"

Q - "You were asked to do that by ...?"

A - "Robert."

Court - "directly by Robert?"

A - "Yes."

Q - "You knew by May 2010 that you were providing evidence in support of Mr McCann's case."

A - "Yes. He had asked me for that information. I didn't know an awful lot about the court case but he asked me for information about the monies."

There was a similar change in position in relation to the Croftmore letter dated 18 August 2009 (6/5 of process). It was put to Mr Clyde by Mr McBrearty that he had been requested to write that letter by the pursuer, to which he replied "No it was not". However, within fifteen minutes of what seemed to have been a quite unequivocal answer by Mr Clyde, there was this exchange between him and Mr McBrearty, Mr McBrearty asking the questions or putting the propositions and Mr Clyde responding:

Q - "The first formal intimation of claim was in December 2009. An expert report was obtained on behalf of Mr McCann in October 2009. In the months leading up - he made preparations for the case against Waddell & Mackintosh. This letter was part of those preparations."

A - "Mr McCann had asked me to clarify these things and I did ... Obviously I was wanting the money, he wanted me to clarify where this money had come from".

Q - "He already knew you wanted your money. As far back as 2007."

A - "Yes."

Q - "You wrote the letter to clarify."

A - "I spoke to him. He said can you put that in a letter for me."

Q - "This letter was written at the request of Mr McCann."

A - "Yes I suppose it was."

Q - "I suggest that it was written in support of the case."

A - "I gather that it was probably the case that it was."

[63] Two other aspects of Mr Clyde's evidence in relation to his supposed claim against the pursuer for recovery of abortive expense in respect of his proposal to purchase Sillyhole reflected adversely on Mr Clyde's credibility. The first is that the letter of 18 August 2009 was misleading if not dishonest. The letter includes the statement: "We put on deposit ... which remained with our solicitor for four weeks" While it is true that this sum was put on deposit, Mr McBrearty described the statement as at best economical with facts in that it gives the impression that the funds were put on deposit specifically for the purpose of purchasing Sillyhole whereas, as Mr Clyde explained in evidence, that was simply not the case; the money had originally been intended for Watson Terrace, Drongan. Moreover, as appears from Lindsays ledger card and their letter of 28 May 2010 (7/2/6 and 7/2/7 of process) the money remained on deposit for a little over two weeks rather than four. The sum of £25,000 seemed to have been plucked from the air without very much in the way of thought as to how such sum, if indeed paid to the Presbyterian Mutual Society related to the abortive proposal to purchase Sillyhole. Leaving aside Mr Clyde's failure to explain why he did not proceed with the Watson Terrace transaction, as was put to him under reference to the Presbyterian Mutual Society record, 7/12/13 of process, the interest actually charged was £9,931.84, of which £4,349.14 had been recouped by Mr Clyde having the money on deposit with his solicitors, therefore leaving only £5,582.70 for him to pay. Mr Clyde's response was that he had also paid a fee of about £17,000 for "the money going back". As was submitted by Mr McBrearty, one might suppose that any such fee would have been paid anyway given that it was taken out for the purposes of purchasing the Drongan site, a transaction which did not go ahead. Mr McBrearty pointed out however that there was no indication of any such fee having been paid in the documents which had been recovered from the Presbyterian Mutual Society. When pressed on the question as to whether a fee of £17,000 had been paid, Mr Clyde's response was that "it came after the event, they would need a fee, I do not know how they came up with it, I paid it." When Mr McBrearty put it to him that that was simply incredible, Mr Clyde accepted that "it sounds that way".

[64] The other aspect of Mr Clyde's evidence which I would see as adversely affecting his credibility is what I took to be his acknowledgement that he would see that he has prospects of payment of the £25,000 which he has claimed from the pursuer in the event of the pursuer being successful in this action. He volunteered "I would like to think that if damages were awarded ... I would get my money" and when Mr McBrearty picked up on that to ask whether he expected to be paid in that event, Mr Clyde replied "It would be nice". As was clear from Mr Clyde's evidence, the context was that the writing of the letters in support of the pursuer's case was occurring in parallel to Mr Clyde making a claim against the pursuer and the pursuer delaying rather than refusing to make payment. As Mr Clyde put it at one point in cross-examination, speaking of the pursuer, "he said he would try to get it sorted out, he was under a bit of pressure". It is the case that when Mr McBrearty suggested that he was assisting the pursuer in the hope of obtaining his £25,000, Mr Clyde denied that. Moreover, I recognise the force of Mr Bowen's submission that it would seem unlikely that someone with the resources of Mr Clyde would contemplate perverting the course of justice by lying on oath, for such a relatively insignificant sum as £25,000. Nevertheless, in relation to this last matter, at best Mr Clyde cannot be regarded as an independent witness. He is someone who, on his evidence, claims to have suffered loss in consequence of "a mix up with [the pursuer's] contract with the Jackson group" and who sees that he might recover that loss in the event of the pursuer obtaining damages against the defenders.

[65] I accordingly take the view that Mr Clyde's credibility is doubtful and that his evidence must be approached with care.

Michelle Edens
[66] Michelle Edens presented as an intelligent witness, whose good humour and pleasant disposition appeared to have survived the stresses of litigation, as had her liking for Mr Gibson ("a nice and genuine person", as she described him). Mr McBrearty described her as being, on the evidence, "the organiser of the family, entrusted with the 'paperwork'". Indeed Mrs Edens described herself as "more paperwork" and "better at speaking", particularly to officials, than the pursuer. This was reflected in her answers to questioning. She was better able to discern complexity in situations than were her brother and father, and her evidence was more nuanced. No doubt due to her professional experience, she appeared to have a more methodical approach to business. She had dealt with planning matters in the course of forwarding the McCanns' business affairs in Scotland and she was very much aware of the history of the evolution of the relevant local plan. As Mr McBrearty accurately observed, a feature of her evidence was an apparent ability to recall detail on a wide range of subjects. She is not of course independent and on some points if her evidence is to be accepted then Mr Gibson's evidence cannot be, and vice versa. As is further discussed below, Mr McBrearty criticised her evidence on the important issue of whether Raymond Clyde offered to purchase Sillyhole, as unsupported by the sort of contemporary notes that someone of Mrs Edens's business-like character might be expected to have kept, and lacking in circumstantial detail. While these are all points for consideration, I cannot say that there was anything in Mrs Edens's demeanour or anything internal to her evidence which, taken in isolation, led me to doubt her credibility or reliability.

[67] However, as I have already noted when discussing the evidence of the pursuer, Mrs Edens's credibility and reliability are very directly put in issue by the evidence of Mr Gibson, at the very least on one matter; that is whether Mr Gibson admitted fault on his part in concluding the missives in the terms in which they were concluded. In evidence-in-chief Mrs Edens was asked whether the question of fault had been raised with Mr Gibson. She indicated that it had; "Mr Gibson told me and [the pursuer] on several occasions [that he had made a mistake]". She went on to explain that Mr Gibson had told her that he had instructed Balfour + Manson on his own behalf or on behalf of the defenders. According to Mrs Edens, Mr Gibson mentioned this a few times in his office when she was there with the pursuer. This was in the context of her explanation that every time the pursuer was in the defenders' office, she was there with him, as was, she went on, Mr McCann Senior. She was then asked whether in any discussion she had had with Mr Gibson, he had suggested that he had in fact given advice to Mr McCann Senior in relation clause 4. To that she replied: "Never". The matter of Mr Gibson having admitted fault was taken up in cross-examination, during which Mrs Edens unequivocally committed herself to the position that Mr Gibson had admitted having made a mistake. It was put to her by Mr McBrearty that she claimed that Mr Gibson "expected to be sued" and she agreed. She went on to explain that Mr Gibson had been very apologetic and that he had done everything he could to get the McCanns out of the position in which the terms of the missives had placed them, but that he had got advice on his own behalf from Balfour + Manson. It was put to her that it was her evidence that Mr Gibson had had no difficulty in conceding that he had made a mistake, to which she replied:

"I think that he was concerned about it. I have got to know Mr Gibson very well; he is a nice and genuine man. He made a mistake; he was under pressure due to illness. At that time I do not know if [the pursuer] was looking at a claim".

Mrs Edens's evidence that Mr Gibson had discussed the possibility of being sued by the pursuer was challenged. Mr McBrearty put to her that it was Mr Gibson's position that he only became aware of the possibility of a claim in December 2009. Her response was "The only discussion was Mr Gibson saying 'You will be suing me' to which [the pursuer] had said 'Let us see how we can get over this' ". Mrs Edens then reiterated her positive assessment of Mr Gibson: "I do not think that Mr Gibson will tell lies. ... I still like him ..."

[68] There was much that was attractive in the way that Mrs Edens gave her evidence, not least in her favourable references to Mr Gibson, and I have not therefore been readily inclined to reject that evidence. However, on the important matter of whether Mr Gibson ever admitted to having been at fault in the matter, I do reject her evidence and that of the pursuer.

[69] In my opinion it is improbable that Mr Gibson did make an admission of fault to the pursuer and Mrs Edens, let alone the repeated admissions "on numerous occasions" spoken to by the pursuer, or the "several occasions" spoken to by Mrs Edens. It is to be supposed that a punctilious conveyancing solicitor, which is how Mr Gibson presented in court, having the frank and straightforward character ascribed to him by Mrs Edens, would indeed admit to his client a mistake of the importance alleged in the present case. Accordingly, on the hypothesis that he had made a mistake and was conscious of having done so, I see nothing improbable about a solicitor, mindful of his professional responsibilities, drawing to his client's attention circumstances which might amount to a failure in the provision of professional services. What I see to be less probable is such a solicitor making such an admission and then, apparently needlessly repeating it on a number of occasions, and all the while continuing to act for the client. Mr Gibson was an employed solicitor. As the pursuer suggests by his reference to Mr Gibson "seeking legal advice to cover his own back and look after the firm", at least by June or July 2006 when the pursuer says the admissions were made, the supposed mistake was one which would have had obvious and potentially adverse implications for Mr Gibson and the defenders. In such a situation one would expect the prudent solicitor to advise his employers and their insurers of the situation, take legal advice, document such admission as he was prepared to make and, importantly, withdraw from acting further for his client. A withdrawal from acting in such circumstances is not entirely altruistic. It spares the solicitor the difficulty of working for and with a client who can no longer have complete confidence in him, and it leaves the client to mitigate his position as best he can, giving the solicitor's insurers the option of arguing that mitigation of damages was inadequate. That there was no discussion with his employers or their insurers prior to receipt of the formal letter of claim from Brodies on 24 December 2009 depends entirely on the evidence of Mr Gibson that he had not acknowledged to the pursuer and Mrs Edens that he had made a mistake, that he had not anticipated being sued or been given any indication of the possibility of a claim. However, there is uncontroversial evidence (in the form of Mr Flint's affidavit) that neither Mr Gibson nor the defenders sought the advice of Balfour + Manson (as claimed by both the pursuer and Mrs Edens). Moreover, Mr Gibson clearly continued to act for the pursuer. Indeed, as Mr McBrearty emphasised, he acted in a transaction in October 2009 which had the result of divesting the pursuer of property adjacent to his house, an unlikely act, in Mr McBrearty's submission, for someone who anticipates being sued by the person whose assets are thereby reduced. Mr Gibson confirmed in evidence that he would not have continued to act for the pursuer had he anticipated being subject to a claim. I found that believable. That Mr Gibson had not anticipated being sued is consistent with his unforced and un-defensive cooperation with Brodies in providing his files in the period 18 August 2009 to 17 December 2009 and the terms of the covering letters (as demonstrated by the correspondence, 7/33/ 1 to 4 and 8 of process). As it would appear from the letter of 18 August 2009, it was Mr Gibson's belief that the files were required in connection with a possible claim against EASSDA. As appears from the dates of Professor Rennie's opinion of 2 October 2007 and first additional note dated 20 October 2009 (7/36 and 7/37), a claim against the defenders by the pursuer was by then under very active consideration; the files were needed in order that Professor Rennie could advise further on negligence. However, there is nothing in the correspondence that I have seen from Brodies to suggest that any admission is being founded upon or that there has been any discussion between the parties on the matter of fault. There is no reference to any admission by Mr Gibson in the pursuer's pleadings.

[70] Because I think it improbable that Mr Gibson made the admissions that Mrs Edens said he had made and because there had been no exploration in the evidence of a basis upon which Mrs Edens might have made an honest mistake about that, for example by interpreting an expression of regret on Mr Gibson's part at the situation in which the pursuer found himself as a confession of culpability, I can only draw an adverse conclusion as to her credibility, at least on this matter. As I have already indicated, this also has adverse implications for the pursuer's credibility.

Jess Nisbet
[71] Although her evidence was in fairly short compass I have no reason to dispute Mr McBrearty's assessment of Mrs Nisbet as an impressive witness. I accept her as credible and I accept her as reliable. She was confident and clear in what she said. While it might be said that she has no reason to be well disposed towards members of the McCann family given her apparent difficulty in recovering commissions which she considered to be due to her in respect of introductions to purchasers, that was not a point on which she was challenged and indeed Mr Bowen, no doubt wisely, adopted a notably cautious and economic approach to Mrs Nesbit's cross-examination.

Resolution of factual issues
(i) Whether the pursuer received no advice from the defenders regarding the meaning and effect of clause 4 of the Missives
[72] While the defenders' pleadings are open to the construction that they aver their client to have been Mr McCann Senior, by the time of the proof I took it as accepted on their behalf that it was the pursuer who had instructed the defenders to act as his solicitors for the sale and conveyance of the subjects to EASSDA, albeit that it was their position that the conduit for these instructions was Mr McCann Senior. It follows that the defenders were bound, as a matter of contract, and, to the extent that in the circumstances that is in any way different, as a matter of duty of care, to exercise that degree of care and skill in the conduct of the transaction as was to be expected of reasonably competent solicitors and that obligation was owed to the pursuer. Given the agreement between Professor Rennie and Mr Reid on the matter, that degree of care and skill required Mr Gibson to give advice along the lines of identified by Professor Rennie. The pursuer complained that he had not received such advice and Mr Gibson did not claim to have given such advice directly to him. As he freely accepted, Mr Gibson did not check his instructions with the pursuer and he did not give advice to the pursuer. His evidence was that he took his instructions from and gave advice to Mr McCann Senior whom he regarded as well versed in planning matters and in making decisions for the family. I accordingly find that the pursuer received no direct advice from the defenders regarding the meaning and effect of clause 4.

[73] The uncontroversial conclusion that the pursuer received no advice from the defenders directly leaves open the question as to whether the pursuer should nevertheless be treated as having received the requisite advice. Once it is accepted that the defenders' client or principal was the pursuer, the status of Mr McCann Senior has to be considered, as is anticipated in Mr Bowen's list of issues. When asked in what capacity Mr McCann Senior was acting from the perspective of the pursuer, Mr Gibson's response was "As an agent, I suppose". That is a proposition that the defenders must establish. The pursuer denies it.

(ii) Whether Mr McCann Senior had authority to conclude missives for the sale of Sillyhole on behalf of the pursuer
[74] I find that Mr McCann Senior had actual authority to conclude missives for the sale of Sillyhole on behalf of the pursuer. Were I to be wrong about that, I find that he had apparent or ostensible authority. In considering the question of apparent authority I am conscious that while the conduct of the supposed agent is relevant, what is critical is the conduct of the supposed principal and in particular whether the principal has so conducted himself as to lead third parties reasonably to believe that the supposed agent does indeed have the principal's authority to transact on his behalf (see eg Armagas v Mundogas SA [1986] AC 717; Bowstead & Reynolds on Agency (19th edit) para 8-013). Were it the case that the pursuer was unaware that Mr McCann Senior was purporting to act in his name then Mr McCann Senior's actings could not bind the pursuer. However, that is not how I understood the evidence.

[75] Underpinning the defence on the merits of this action is the assertion that although he chose not to contract in his own name, "the boss" of or "the driving force" behind the various transactions for the acquisition or sale of land in Scotland in which members of the McCann family or their companies were involved was Mr McCann Senior, and that the purchase and then sale of Sillyhole were examples of such transactions. As Mr Gibson put it: "[Mr McCann Senior] held himself out to be the person who gave all instructions and made decisions in relation to the family business. Whenever I spoke to [the pursuer] or Michelle Edens with a query, they referred me to [Mr McCann Senior]; that they did not take decisions is my understanding". Jess Nisbet gave evidence to similar effect; "the boss" and "the driving force" were expressions which she applied to Mr McCann Senior. She explained that she normally dealt with Stephen McCann but this was on behalf of his father. She regarded the pursuer as having a subordinate role and did not deal with him at all in relation to Sillyhole; the decision-maker was Mr McCann Senior. I accept Mrs Nisbet's evidence. It was given clearly and confidently. It was not really challenged in cross-examination. Of course that evidence has its limitations in that it relates to what was Mrs Nisbet's impression of relationships within the McCann family. Moreover, it was Stephen McCann with whom Mrs Nisbet normally dealt; she accepted that she had only actually met Mr McCann Senior twice. Mr Gibson's evidence was consistent with what Mrs Nisbet said about Mr McCann Senior. According to Mr Gibson, virtually all his instructions came from Mr McCann Senior; it was

"clear at a very early stage that he was 'the boss' in the family ... he drove everything ... effectively he was the client".

[76] As Mr McBrearty emphasised, Mr Gibson's evidence that he was repeatedly instructed by Mr McCann Senior in relation to property transactions, both before and after the conclusion of missives for the sale of Sillyhole, was supported by the terms of the numerous file notes made by him. Mr McBrearty asked me to accept Mr Gibson's evidence. He reminded me that no suggestion had been made that the file notes were other than genuine. Mr McCann Senior repudiated the references in the file notes to him giving instructions, indicating a sharp conflict between his version of events and that of Mr Gibson. There were occasions however when Mr McCann Senior's position of absolute denial was qualified. Asked whether he might have given instructions to Mr Gibson in relation to property at New Cumnock, as indicated by the file note 7/50 of process, he conceded that he would have done so had the pursuer asked him to do it. As I note elsewhere in this opinion, the evidence of the pursuer was that Mr McCann Senior did give instructions on his behalf in relation to the New Cumnock transaction.

[77] I accept Mr Gibson's evidence on this matter, not only because of my general impression as to his credibility and reliability and because he is supported by his contemporaneous file notes but because, on a detailed consideration, I take the evidence given by the pursuer and Mr McCann Senior, insofar as I accept it, to be consistent with what was spoken to by Mr Gibson.

[78] In relation to the acquisition of Sillyhole I took it to be uncontroversial that Mr McCann Senior instructed the defenders to conclude missives and then take title, first on behalf of County Commerce Limited and then in the name of the pursuer. In other words, in relation to the acquisition of the property the pursuer accepts that his father had all necessary authority (at that stage either because he was acting on his own behalf, as Mr Gibson would have it, or because he was acting on the instructions of the pursuer, as I would take the pursuer to have it: "My father worked on it but it was my transaction"). In relation to the sale the position is different. In examination-in-chief the pursuer was asked whether at any time after he had become the proprietor of Sillyhole he had authorised Mr Gibson to take instructions from anyone other than him. He answered "No". Similarly, Mr McCann Senior was asked whether he had ever said to Mr Gibson that he had been authorised by the pursuer to discuss the terms on which Sillyhole was to be sold, he said "No".

[79] These specific answers as to communications with Mr Gibson in relation to the sale of Sillyhole, can be contrasted with other passages in the pursuer's evidence, relating to other transactions. Although, when it was put to the pursuer in cross-examination that, as a matter of routine, Mr McCann Senior had authority to make offers on behalf of Regent Builders, the pursuer, Stephen McCann and any other member of the family, he denied that, he did accept that Mr McCann Senior did "deals" for him and that "he would have authority to put in an offer in my name". When he came to give evidence, Mr McCann Senior explained, at the beginning of cross-examination, that: "I ran about looking for sites ... I never bought sites in my name". That formulation suggests that he did indeed buy sites and begs the question in whose name he bought them. An answer to that question is to be found in the admittedly very general evidence as to his activities in Scotland from about 2003 which Mr McCann Senior gave in chief: "I started looking for sites, anything cheap ... It was always my idea to help the family, if I got a good site I would have tried to pass it on ... I got involved in most of these sites just for the family." That comes close to an acceptance that the affairs of members of the McCann family were linked, that they cooperated one with the other and that Mr McCann Senior acted on behalf of other family members including the pursuer.

[80] The pursuer accepted that while Mr McCann Senior was never a client of the defenders, he was aware that his father contacted Mr Gibson "about sale prices". He accepted that the proposed purchase of a site at South Harbour Street, Ayr at a price of £1 million, which is the subject of Mr Gibson's file note of 3 November 2004 (7/61 of process), was an example of Mr McCann Senior instructing the making of an offer on the pursuer's behalf, as was the proposed purchase of a site at Bogside Road, Kilsyth at a price of £750,000, which is the subject of Mr Gibson's file note of 6 July 2005 (7/67 of process). Another example of Mr McCann Senior giving instructions to the defenders on behalf of the pursuer is recorded in the file note of 7 December 2004 (7/65 of process). This relates to the sale of a property at Highfield Avenue, Kilmarnock in the name of the pursuer. Mr McCann Senior instructed Mr Gibson as to the application of the sale proceeds. The pursuer explained that whereas his father had "done the deal", it was he who had bought and sold the land and who had decided where the resulting funds should go. However, he did accept that it was his father who had actually given the necessary instruction to Mr Gibson.

[81] That the defenders had the pursuer's authority to conclude missives for the sale of Sillyhole (however communicated) is probably sufficiently apparent from the pleadings but at the beginning of cross-examination Mr McBrearty methodically took the pursuer through a list of his complaints against the defenders and a list of matters with which he had no quibble. During this process the pursuer confirmed that his complaints were: that he had not been advised that it was only EASSDA who could resile in the event of planning permission not being obtained (had he been advised he would have insisted on a reciprocal provision); that missives had been concluded with EASSDA being able to pull out but he not being able to do so; and that he was therefore deprived of the opportunity to resile which he otherwise would have taken by July 2007. The pursuer however also indicated that he had no quibble with: both Sillyhole and The Glebe being bought in his name; binding missives for the sale of Sillyhole being concluded in March 2005; proceeds from the sale of The Glebe being applied by the defenders to payment of various debts in 2005; and amending missives being concluded with EASSDA in his name. Mr McBrearty then put it to the pursuer that the defenders had had his authority to do each of the things with which he had no quibble and the pursuer confirmed that that was the case. That was consistent with what was said by Mr Gibson in evidence-in-chief when he freely accepted that the advice on the terms of the missives for the sale of Sillyhole had been given to Mr McCann Senior and not to the pursuer, that being because, as he put it, "I had authority from Mr McCann Senior". Mr Gibson was then asked whether it had ever been suggested to him since March 2005 that he did not have authority to conclude missives to which he replied

"No. On the contrary, my instructions were to pursue the transaction to completion as quickly as possible."

[82] If then the defenders must be taken to have been instructed to conclude missives on behalf of the pursuer but Mr McCann Senior neither had authority to give such instructions nor gave them, the question arises as to how it was that the defenders came to be instructed. Whereas, on the defenders' version of events, Mr Gibson's evidence provides a clear and specific answer to that, the same cannot be said for the evidence of the pursuer on his version of events. According to the pursuer he met with Stuart Jackson in the summer of 2004, having been put in contact with him by Jess Nisbet. The pursuer showed Sillyhole to Mr Jackson. Mr Jackson expressed an interest in acquiring it. They agreed a price of £1 million for Sillyhole and The Glebe. The pursuer told Mr Jackson to send a formal offer to the defenders. Thereafter, in the pursuer's evidence-in-chief, there was nothing to suggest a contact between him and Mr Gibson on a specific occasion with a view to discussing the missives. The pursuer spoke of having an understanding of the terms of the missives but he had no memory of being shown either of the two letters to which he was referred, and he made no reference to any specific telephone call to or meeting with Mr Gibson. In cross-examination the pursuer did make reference to telephoning or meeting with Mr Gibson "on numerous occasions"; he could not remember how often. He remembered talking to Mr Gibson on the telephone about the price which had been offered. Although it did appear from the file note of 28 October 2004 (7/29/6 of process) that Mr McCann Senior had discussed the terms of payment for The Glebe with Mr Gibson, the pursuer said that the matter was confirmed with him and that he remembered speaking to Mr Gibson about it. However, the pursuer accepted that this was not reflected in the file notes and a feature of the pursuer's evidence was a lack of specifics as to when and to what effect he gave instructions to Mr Gibson in relation to the missives for the sale of Sillyhole.

[83] The pursuer accepted that it was possible that his father and Mr Gibson discussed the Sillyhole transaction between 27 August 2004 and 3 March 2005; as the pursuer put it, "[Mr McCann Senior] talked to Mr Gibson a lot". When shown the file note of 7 December 2004 (7/32/219 of process) which records a number of actions undertaken by Mr Gibson in relation to a servitude right of access and reported on to Mr McCann Senior, the pursuer explained that while it was his transaction, his father "helps when he can and how he can". The nature of that help was not fully explored but Mr McBrearty followed up to the extent of obtaining the pursuer's confirmation that the help related to "prices and stuff" and included servitudes.

[84] If, as the pursuer claims, Mr McCann Senior did not have his authority to give instructions on his behalf in relation to Sillyhole, it was not easy to understand why that it should be that he talked to Mr Gibson "a lot". True, other transactions or potential transactions were on-going, but if Mr McCann Senior had authority in relation to them, as he apparently did in the case of South Harbour Street, Ayr and Bogside Road, Kilsyth, why should it be that he did not have authority in relation to Sillyhole? If he did not have authority in relation to Sillyhole, why did Mr Gibson report to him and what precisely did the pursuer mean by Mr McCann Senior helping when and how he could. There is also what I regard as a persuasive point made by Mr McBrearty which was that the pursuer's insistence that while his father and also his sister did communicate with Mr Gibson on his behalf, matters, or at least important matters, were always confirmed with him. Such an unnecessary duplication of effort simply does not make practical sense whereas it was clear to me that the McCanns were practical people.

[85] On the face of the file note of 3 March 2005, 7/29/7 of process, it was Mr McCann Senior who gave instructions for conclusion of the missives for the sale of Sillyhole. The pursuer's evidence on this was much to the same effect as his evidence under reference to the file note of 28 October 2004; he did not dispute that Mr McCann Senior gave the instructions there recorded (something that Mr McCann Senior had difficulty accepting when he was asked about it) but he explained that Mr Gibson would have previously received instructions from him. Mr McCann Senior reluctantly conceded that he may have given the instructions recorded in 7/29/7 but "it definitely would be confirmed with [the pursuer]".

[86] If anything, re-examination of the pursuer underlined the difficulty of squaring the evidence pointing to the facts that it was Mr McCann Senior who purported to instruct conclusion of the missives on 3 March 2005 and that the pursuer has been content to proceed on the basis that the missives were indeed concluded, on the one hand; with the proposition that Mr McCann Senior did not have the pursuer's authority to act on his behalf, on the other. At the very beginning of re-examination Mr Sandison asked the pursuer whether he expected Mr McCann Senior to do anything without his authority, to which the pursuer answered "No". He was then asked whether he was aware of Mr McCann Senior doing anything on his behalf without his authority, to which he answered "I found out later ... it was in 2006, the amendment of the missives." Questioning then turned to other transactions, the pursuer generally giving answers which in broad terms indicated that he was aware of what was going on and that it was he who would confirm instructions to Mr Gibson. Perhaps because by then that seemed to be the established theme of counsel's questioning, when the pursuer was asked whether he knew if such a conversation as is recorded on 7/29/7 of process (the file note of 3 March 2005) took place, he replied that he knew all about this. That may not have been the answer counsel for the pursuer anticipated receiving. Mr Sandison therefore essentially repeated the question (having first reminded the pursuer what the file note recorded), in the slightly different formulation "Were you aware that that had happened?" The pursuer's reply on this occasion was "I was aware that it was going to happen". Counsel continued with the question "Did you know [Mr McCann Senior] was on the phone, discussing the contract?" to which the pursuer replied "I am not sure". After a few further questions, counsel had the pursuer replying "No" to counsel's inquiries as to whether he had been aware that Mr McCann Senior was giving instructions to go ahead and conclude the deal and as to whether he had authorised Mr McCann Senior to do such a thing. I saw this as a clear change of position, albeit shepherded by counsel, which reflected the pursuer's difficulty in accommodating his wish to assert, in accordance with his case on record, that the transaction was entirely his and under his control, with the reluctantly conceded activity on his behalf on the part of Mr McCann Senior. The passage in re-examination may reflect well on the skill of counsel. It does not reflect well on the credibility and reliability of the pursuer.

[87] Moreover, Mr McBrearty was able to point to the pursuer's concession, under reference to 7/33/364 and 7/33/367 of process, that it was Mr McCann Senior who had given the instructions to conclude the amending missives on 11 September 2006 (a matter of sufficient importance to be specifically noted in Professor Rennie's first additional note of 20 October 2009, 7/37/1 of process, a document which precedes the defenders being put on notice of the pursuer's intention to bring proceedings). In re-examination the pursuer was asked whether he was aware that such a thing had occurred to which he answered that he had become aware "when I saw the fax in Brodies' office" (presumably at a consultation at about the time of issue of Professor Rennie's first additional note, and therefore some time after the event). The pursuer was unable to explain why it was Mr McCann Senior rather then he who had signed the relevant document confirming the instruction to amend the missives, beyond suggesting that at the critical time he had been working on site, that the matter was urgent and that it provided for an increase in the price. As Mr McBrearty emphasised, the pursuer has never asserted that the missives were concluded without his authority. I see the pursuer's evidence, looked at as a whole but in particular in relation to the conclusion and amendment of the missives for the sale of Sillyhole, to come very close to an acceptance that Mr McCann Senior had his general authority to contract on his behalf in the purchase and sale of heritable property and, in particular, that heritable property.

[88] Insofar as the pursuer and Mr McCann Senior gave evidence to the effect that Mr McCann Senior did not have the pursuer's authority to conclude missives on his behalf and that Mr Gibson should be taken to have been aware of that, I reject that evidence. It may be that there was no express agreement between father and son conferring the authority of the latter on the former. Indeed I would be surprised were that so. What is more probable is that they developed a way of working over a series of transactions, without ever formalising it. They were practical men operating in a very dynamic environment who were, reasonably enough, interested in making money in a booming market. Neither had much interest in "paper work". I would see it as improbable that they thought very carefully at the time about the implications of their business methods. They may have thought more carefully about matters since then, but the version of events presented by them to the court has appeared to me a highly selective rewriting of history which conflicts with the evidence both of Mr Gibson and Mrs Nisbet and is not internally coherent. On the matters of whether Mr McCann Senior acted on the pursuer's behalf with the pursuer's approval and agreement and whether Mr Gibson was entitled to treat Mr McCann Senior as the pursuer's agent with power to contract on his behalf, I prefer the evidence of Mr Gibson and Mrs Nisbet to that of the pursuer and Mr McCann Senior.

[89] Accordingly, on this issue, having regard to all the evidence, I conclude that Mr McCann Senior did have the pursuer's actual authority to conclude missives for the sale of Sillyhole on his behalf. I infer that as a matter of fact, but if I were to be wrong about that, it appears to me that on the evidence, in a question between the pursuer and the defenders that the pursuer is to be regarded as having held out Mr McCann Senior as apparently or ostensibly having full authority to contract on the pursuer's behalf in relation to the purchase and sale of heritage, including the sale of Sillyhole.

[90] Mr Bowen identified the relevant issue in terms of authority to conclude missives. As I understood him, and Mr McBrearty, that was on the basis that if an agent has authority to instruct a solicitor to conclude missives on behalf of a principal, it must follow that, although the principal will be the solicitor's client, the agent will have authority to receive and act on any advice given by the solicitor in relation to the conclusion of missives. I would agree that that must be so. What I find to have been established is full actual authority on the part of Mr McCann Senior to contract on behalf of his son together with everything incidental to that, including authority to receive advice and then act in the light of it either by accepting it or rejecting it. As I have indicated, if I am wrong about that I find that, in a question between the pursuer and the defenders, Mr McCann Senior must be held to have apparent or ostensible authority to the same effect.

(iii) Whether Mr Gibson gave the advice he claimed to have given on 27 August 2004
[91] In identifying the principal issues for determination, Mr Bowen took the three occasions when Mr Gibson claimed to have advised Mr McCann Senior on the meaning and effect of clause 4 as three events to be considered separately. As indicated above, I shall follow that approach. In doing so, I bear in mind that it is for the defenders to establish that the advice claimed to have been given was in fact given. That I do not accept Mr McCann Senior as a credible and reliable witness only takes the defenders so far. Rejecting Mr McCann Senior's evidence may make it possible to accept Mr Gibson's but unless I can accept Mr Gibson as accurate on what he said, the defenders cannot succeed.

[92] Mr Gibson's evidence was that Frazer Coogans offer to purchase Sillyhole, dated 27 August 2007, was initially sent to the defenders' office by fax. The letter arrived by post the following day. The fax copy is 7/32/306 of process. The original letter is 6/1/1 of process. According to Mr Gibson his initial view was that he was unhappy with clause 4 on three counts: its reference to "onerous conditions" was vague, the 9 month period within which to obtain planning permission was short, and the right to resile was drafted solely in the purchaser's interest. He explained that one did see such clauses "coming in" but generally such a provision would give the right to resile to either party. His preference was to delete the clause and reword in his own way. He telephoned Mr McCann Senior on receipt of the fax. During that telephone call Mr Gibson confirmed to him that the purchase price was £1 million with entry a month after the grant of planning consent. In relation to clause 4 it was Mr Gibson's evidence that he told Mr McCann Senior that it was drawn in a one-sided manner. He asked Mr McCann Senior whether he thought that 9 months was sufficient time within which to obtain planning consent, to which Mr McCann responded that there was no problem. Mr McCann, as Mr Gibson put it, seemed to be perfectly happy. As far as the expression "not to be subject to onerous conditions" was concerned, Mr Gibson thought it too wide; he wanted it altered. He advised Mr McCann Senior about the right to resile, albeit that this was the least of his concerns before he spoke to Mr McCann Senior because he thought that there would be no problem in altering it; the "other side" would expect that. Mr McCann Senior did not seem to quite grasp the point to begin with but Mr Gibson read through the clause, explained that "resile" meant "pull out", and further explained that the effect of the clause as it appeared in the offer was that the purchaser could pull out but that the seller could not. Mr Gibson strongly advised that it should be altered so that either party could resile in the event of planning consent not being obtained. To his surprise, Mr McCann Senior responded by saying that he did not want to give the Jacksons the idea that he might pull out. Mr Gibson then advised that this would be unlikely to happen as the Jacksons' solicitor would advise them that this would be normal. He tried several times to persuade Mr McCann Senior to change the wording of the clause so as to make it a double-sided right, explaining that if it remained as it was, as a one-sided right, and if Mr McCann Senior did not get planning consent in the time stated, he would be stuck with the contract and would not know how to go forward. According to Mr Gibson, at the end of what was quite a long discussion, Mr McCann Senior told him to "leave everything ... I will speak to Stuart Jackson again". Therefore at that point Mr Gibson had no instructions. He did not compile a file note to record his telephone conversation (a point made against him by Mr Bowen) but, according to him, that did not adversely affect his memory of the conversation.

[93] Mr McCann Senior denied having received such advice on 27 August 2004 or otherwise. In evidence-in-chief his response was:

"Definitely not ... it would have been completely unacceptable ... never would be ... not zoned until September 2006 ... it was common knowledge, all the planners were able to tell you."

In cross-examination he was to similar effect. While at points Mr McCann Senior expressed himself as not remembering or not recollecting such a conversation, formulations he reiterated when he came to be cross-examined in relation to the conversation which Mr Gibson spoke to as having occurred on 29 September 2004, I took his position to be, as he had said at first during cross-examination, that the conversation simply did not take place. This is what Mr McBrearty described as an absence of nuance. In other words, the conflict in the evidence is not about exactly what was said, but rather whether anything was said at all. Of course, in the event of that issue being resolved in favour of the defenders it is still necessary to consider whether they have established that what was said met what Professor Rennie and Mr Reid agreed would amount to an exercise of reasonable care.

[94] Were what Mr McCann Senior said to be correct one would suppose that Mr Gibson must have got his instructions on what to do in response to the offer of 27 August 2004 directly from the pursuer. However, a feature of the pursuer's evidence is its vagueness as to his involvement in the conclusion of missives for the sale of Sillyhole and although in the course of what was a very vigorous cross-examination it was repeatedly put to Mr Gibson that he had not given the advice he claimed to have given to Mr McCann Senior, it was not specifically put to him that it was the pursuer from whom he had received his instructions on the offer. In examination-in-chief the pursuer explained that he had negotiated the price directly with Stuart Jackson but when shown the letter of 27 August 2004 he said that he did not see that letter in August 2004. Nor could he remember seeing the missive of 20 January 2005. How or when the pursuer might have given instructions to Mr Gibson was not further explored. In cross-examination the pursuer said that he did remember discussing on the phone that an offer was in and what was the price offered but he gave no further details and the matter was left there. The pursuer was re-examined as to his involvement in a number of transactions, as I have noted above, but he was not asked about any specific contacts that he may have had with Mr Gibson between August 2004 and March 2005. In the result I heard only the most general evidence as to whether or how the pursuer claimed to give instruction on the missives, either on or about 27 August 2004 or thereafter.

[95] Looking to the whole of the evidence and my assessment of the credibility and reliability of the various witnesses I have come to the view that the defenders have established, on a balance of probabilities, that Mr Gibson did indeed speak by telephone to Mr McCann Senior on 27 August 2004 and that in the course of that conversation he gave the advice on clause 4 which he claimed in his evidence to have given. My reasons for coming to that conclusion are as follows.

[96] There is no reason to doubt Mr Gibson's evidence that he first saw the faxed version of the first missives letter (7/32/306 of process) on the morning of 27 August 2004. The hard copy (6/1/1 of process) arrived thereafter. True, there is no file note of the discussion between Mr McCann Senior and Mr Gibson on 27 August 2004. Mr Bowen understandably made much of that and Mr Gibson accepted that, if he had followed his own systems he should have compiled a file note. However, as Mr McBrearty submitted, it would be very surprising if Mr Gibson did not discuss the offer with someone in order to discover what he was to do in response. The complete absence of a file note therefore loses much of its force unless it were to be suggested did not discuss in the offer with anyone, something which appears to me to be very unlikely. Mr Gibson's evidence was that, having considered the terms of the offer, he telephoned Mr McCann Senior. That, on my assessment of the evidence as to previous dealings, would have been the natural thing for him to do and, as I have indicated above, there is no very clear alternative version of how Mr Gibson obtained his instructions. That Mr Gibson was concerned over the terms of clause 4 is supported by the presence of his handwritten annotation "del" on the faxed copy and if he was concerned about that it would seem likely that he discussed the matter with the person from whom he generally took instructions. That person I find to have been Mr McCann Senior. Mr McCann Senior denied this but I do not consider him to be a necessarily credible and reliable witness and on this matter I do not believe him. Mr Bowen put it to Mr Gibson that it was simply incredible that a property developer of the experience of Mr McCann Senior would not take the advice of his solicitor. That is not my assessment of Mr McCann Senior. I would regard him as someone who would be quite confident that he had a much better understanding of a land deal than any solicitor. Mr McCann Senior did not strike me as a man who would necessarily do what he was advised to do. Consistent with Mr Gibson's observation "That was the way [Mr McCann Senior] operated; he liked to negotiate himself", my impression of Mr McCann Senior was of someone who saw himself as a fixer, someone who could sort out a problem. Mr Gibson's account of Mr McCann Senior saying "leave everything ... I will speak to Stuart Jackson again" had the ring of truth about it (it is also consistent with an answer given by Mr McCann Senior in cross-examination, albeit without any very clear context to it: "I phoned the father [Alistair Jackson], he assured me he would get things sorted out with the son [Stuart Jackson] but nothing happened"). True, nothing seems to have come of that but, as Mr McBrearty submitted, Mr Gibson's evidence of Mr McCann Senior not wishing to give Stuart Jackson "the wrong impression" is consistent with Mr McCann Senior being keen for the sale to proceed without difficulty (influenced, in turn, by the need to be able to pay others from the proceeds), and therefore not wishing to do anything which could possibly give the purchaser the impression that he might wish to pull out. That gets support from the contemporaneous file notes relating to the dispute with Jones Finance (7/29) which indicate that with a view to resolving that dispute, Mr McCann Senior was suggesting paying the proceeds of "Dalmellington" over to Jones. A one-sided option to resile did not represent a difficulty if planning consent was obtained within the stipulated period and, unusually, in this case it was for the seller to obtain the consent.

(iv) Whether Mr Gibson gave the advice he claimed to have given on 29 September 2004
[97] A qualified acceptance was sent by the defenders to Frazer Coogans by letter of 1 October 2004. Among the qualifications was a proposed alternation to clause 4 directed at Mr Gibson's concern over "onerous conditions" but with no alteration to the one-sided right to resile. According to Mr Gibson he had by then spoken to Mr McCann Senior again. To judge by Mr Gibson's file note dated 1 October 2004 (7/32/299 of process) this telephone conversation was on 29 September 2004. To the best of Mr Gibson's recollection, Mr McCann Senior had had a conversation with Stuart Jackson but he still did not wish to alter the single-sided right to resile despite Mr Gibson's advice that he should. Advising Mr McCann Senior on the one-sided nature of the provision had been extremely important. Mr Gibson had said to him that altering it would not be contentious but the response was that Stuart Jackson could be impulsive and Mr McCann did not want to give him the wrong impression. According to Mr Gibson, he emphasised that it would be necessary to obtain planning permission within the nine-month period. As Mr Gibson recollected, Mr McCann responded by saying that there had been planning consent for part of the site but it had lapsed. He repeated what had become something of a "mantra" that "planning was not a problem".

[98] As Mr Gibson had to accept, his file note contains no specific reference to his giving advice to alter the terms of clause 4 beyond "JAG also advising that the offer gave a period of 9 months wherein the sellers had to obtain planning for the whole unit and noting this appeared satisfactory". The file note was what Mr Gibson described as an inadequate précis. While Mr McCann Senior's response to the proposition being put to him in cross-examination that he had had a conversation with Mr Gibson on 29 September 2004 of a similar nature to that on 27 August 2004, was that he could not remember, he disagreed very much with the suggestion that Mr Gibson had advised on the dangers associated with clause 4.

[99] For essentially the same reasons as apply to his evidence in relation to the telephone call on 27 August 2004, I accept Mr Gibson's account of the advice he gave on 29 September 2004. Moreover, the fact that a change was made to clause 4 in the course of the missives tends to support Mr Gibson's position. Clause 4 had not simply been completely over-looked and it would be curious if Mr Gibson had highlighted the "onerous conditions" issue but yet had missed what was accepted by everyone as being a very unusual one-sided right to resile.

(v) Whether Mr Gibson gave the advice he claimed to have given on 3 March 2005 prior to conclusion of missives
[100] Missives were concluded by the exchange of the defenders' and Frazer Coogans' letters both dated 4 March 2005. The defenders' file note of 3 March 2005 (7/29/7 of process) records a telephone call between Mr Gibson and Mr McCann Senior. Three distinct items of business are noted as having been discussed. The third was the sale of Sillyhole. That part of the file note included reference to a servitude right of access. The final sentence was in the following terms:

"JAG pointing out to Robert that entry to the 9.41 acres will therefore be 12 months after conclusion of the contract with no conditional element so far as the seller is concerned but noting that Robert is quite happy that there is more than enough time to obtain the planning consent within that time scale and we are to conclude the deal on that basis."

Mr Gibson gave clear and detailed evidence as to the advice he claimed to have given to Mr McCann Senior on 3 March 2005. He explained that it was not all recorded in the file note. He had emphasised that "he" (meaning Mr McCann Senior) had to get planning consent within 12 months. Mr McCann Senior had told him that the architects were working on it but it had proved more lengthy and problematic than Mr McCann Senior had originally thought. In what I have noted as an answer to a leading question, Mr Gibson confirmed that he had asked Mr McCann Senior whether he would not consider revising clause 4 to include a double-sided resiling provision and that when Mr McCann Senior said "no", Mr Gibson told him that he had to get planning permission within 12 months otherwise the contract would be "a nonsense". Mr McCann Senior's response was "Don't concern yourself with planning, planning is no problem."

[101] I found Mr McCann Senior's evidence on the matter to be less than clear and straightforward. He recalled that there had been a question over a servitude right of access. When it was put to him in cross-examination that the file note of 3 March 2005 accurately recorded him giving instructions to Mr Gibson in relation to the servitude question, Mr McCann Senior's response was "It may have happened but I do not recall". When that was followed up with the proposition being put that he was giving instructions on behalf of the pursuer, Mr McCann Senior's response was:

"Only in relation to the ransom strip, if I gave instructions on behalf of [the pursuer] they would definitely be confirmed with [the pursuer]."

Mr McCann Senior then went on to disagree when it was put to him that he instructed conclusion of the missives after Mr Gibson had reminded him of the terms of clause 4. When Mr McBrearty again put it to him that Mr Gibson had repeated his advice on clause 4 Mr McCann Senior's response was "Why would anyone do that, it does not make sense, I disagree."

[102] Again, I accept the evidence of Mr Gibson and, insofar as it contradicts Mr Gibson, I reject the evidence of Mr McCann Senior. Mr McCann Senior seemed to accept that he probably had had a conversation with Mr Gibson about the sale of Sillyhole at about that time. He offered no explanation as to why in that case the conversation should only relate to the servitude (the "ransom strip") or why (and this was a point made generally by Mr McBrearty about similar answers given both by Mr McCann Senior and Mrs Edens) he should give instructions on behalf of the pursuer which "would definitely be confirmed" with the pursuer. I found no such incongruities in the evidence of Mr Gibson and what he said was at least consistent with his contemporaneous file note. At this point I would revert to an earlier observation. I have been conscious that a witness in the position of Mr Gibson might unconsciously somewhat embellish his account in evidence of the advice he gave to his client. In other words, looking back with the knowledge of how significant the terms of the clause turned out to be but nevertheless intending to be honest, there might be a tendency on the part of such a witness to present his evidence on the advice he gave in a particularly favourable way, suggesting, for example, a greater clarity or emphasis than might truly have been the case. After all, Mr Gibson accepted that at the relevant time the single-sided option to resile was "the least of my worries". It might possibly therefore be the case that while he drew the problem with option to the attention of Mr McCann Senior he did not do so in the repeated and emphatic way that he described in his evidence. However, this is not a route that I was encouraged to follow by counsel and it has no basis either in the cross-examination of Mr Gibson or in the evidence of Mr McCann Senior. The critical issue as to whether the defenders have established their defence that on the three occasions identified Mr Gibson gave advice to the person I accept was the pursuer's agent in terms which met Professor Rennie's requirements therefore comes to be determined on the assessment of the veracity of Mr Gibson when giving his evidence. As I have indicated, my assessment is that he was an honest witness and, no attack having been advanced as to his reliability (as opposed to his credibility) and I having discerned no independent reason to doubt his reliability I have accepted his evidence.

(vi) Whether had the pursuer received the requisite advice from the defenders he would not have concluded missives unless clause 4 was amended to give him a right to resile if outline planning consent was not obtained within the twelve month period
[103] The pursuer's evidence was that had he been advised of the effect of clause 4, he would have insisted on it being altered. As was accepted by Mr McBrearty on the basis of Mr Jackson's evidence, had it been requested EASSDA would have accepted a revisal to make the right to resile double-sided. Accordingly, had I found that the pursuer had not received, and should not be taken to have received, the requisite advice I would have had to consider whether he would have followed that advice with a view to determining whether the failure to give advice was causally connected to what the pursuer would claim to be his damage. However, given that, in a question with the defenders, I find Mr McCann Senior to have had the pursuer's authority to conclude missives on the pursuer's behalf for the sale of Sillyhole on such conditions as Mr McCann Senior thought best, using the professional services of the defenders, and that incidental to that authority was authority to receive and act or not to act on such advice as was given by the defenders, I consider that this question becomes hypothetical and not really capable of answer. On the facts as I find them to be, the pursuer had put decision-making out of his own hands and into the hands of his father. How he would have responded to the advice which Professor Rennie would require a reasonably careful and ordinarily competent solicitor to give to a seller in the circumstances, is therefore not a question that arises. If, however, question (vi) is one that I must determine, I would find that the pursuer has not established that he would have taken a different course from that taken by his father, that is concluding the missives with a one-sided option to resile left in place.

(vii) Whether in July 2007 Raymond Clyde on behalf of Croftmore Developments orally offered the pursuer £2.5 million to purchase the subjects without outline planning permission which offer the pursuer was unable to accept because he did not have a right to resile from the missives
[104] Mr Bowen submitted that I should find it established on the basis of the evidence of the pursuer, Raymond Clyde and Jess Nesbit, that an oral offer had been made in July 2007 to purchase Sillyhole for £2,500,000 without outline planning permission and that Croftmore Developments had the funding available to pay the price. Mr McBrearty submitted that the court should find that there had been no verbal offer of £2.5m for the land in July or August 2007; and even if there had been, Raymond Clyde/Croftmore Developments Limited would not have secured funding to allow them to proceed with that purchase.

[105] The pursuer's evidence was that Jess Nesbit had introduced Raymond Clyde as someone who wished to buy ground for development. Mr Clyde had expressed interest in the site at Ayr Road, Kilmarnock, a site in Cumnock and Sillyhole. They had a meeting at Brunston Castle Golf Club in July 2007. Mr Clyde had made a verbal offer to purchase Sillyhole, "as it stood", in other words without requiring that it be subject either to planning permission or zoning. Mr Clyde had proposed a price of £2 million. The pursuer had asked for £3 million. Then "after 15 minutes we agreed to split the difference" at £2.5 million. Asked by his counsel for the basis for his proposing £3 million, the pursuer replied that, at that time it was the start of the property boom, sites were selling at £300,000 per acre. He thought £3 million a fair price. When asked why Mr Clyde was prepared to pay £2.5 million the pursuer explained that he had money for a different site on which he did not complete. According to the pursuer at that meeting he explained to Mr Clyde that he was in the process of trying to get out of the contract with EASSDA.

[106] Raymond Clyde's evidence in very large part mirrored that of the pursuer: a meeting over lunch at Brunston Castle Golf Club, the pursuer proposing to sell for £3 million, Mr Clyde proposing £2.5 million because that sum was available. An apparent conflict was that whereas the pursuer indicated that he was "trying to get out of the contract" with EASSDA, the impression given by Mr Clyde was that he only learned of a difficulty with a previous contract at a much later date. Towards the end of evidence-in-chief he was asked why the transaction had not gone ahead Mr Clyde replied:

"I did not get to the bottom of it ... it did not seem to be happening ... Now I understand that he was tied into a contract and they could not sell it."

[107] Mrs Nesbit was able to support the account that it was she who had introduced the Clydes to the McCanns but had nothing to add beyond that. When making his closing submissions, Mr Bowen did not specifically refer to Michelle Edens's evidence but she also spoke to the Clydes offering £2.5 million for Sillyhole, possibly at a lunchtime meeting at Brunston Castle Golf Club. When cross-examined, she described it as a serious offer. She had talked to Mr Clyde about it. She was at several meetings when it was discussed. When challenged on that, Mrs Edens responded, with every indication of sincerity: "I am telling you, standing here on oath, there certainly was an offer." There was an impressive energy in that answer. There was a similarly lively answer when Mrs Edens was asked about the source of the Clydes' funds:

"They were getting money from the Presbyterian Mutual Society ... It sounded too good to be true, their criteria for lending were less [than] stringent, the only requirements, right or wrong, were that the borrowers had clear title ... and were Presbyterian."

However, vivid as this evidence was, as was submitted by Mr McBrearty, it was unsupported by any document or indeed much in the way of circumstantial detail. The same observation can be made in respect of the evidence on the matter which was given by the pursuer and by Mr Clyde. However, staying for the moment with Mrs Edens, as Mr McBrearty submitted, something notable about her evidence generally was her ability to recall detail on very wide-ranging subjects; she remembered details of shareholding and directorships, for example. By contrast, her recall of the offer of £2.5m was limited. She said that it was discussed at various meetings but she had appeared uncertain as to whether she had been at the first meeting when it was first made (neither the pursuer nor Mr Clyde had spoken to her being at the meeting they described). Nor could Mrs Edens recall the location of the meeting she attended when the matter was discussed. She also accepted that she would have taken notes of the meeting, but no supporting documentation was provided to the court. Moreover, her evidence towards the end of cross-examination was that the meetings at which the verbal offer was discussed and remained open ("when Raymond Clyde was firm on the offer") were over a period of a month or two. While admittedly Mrs Edens described her assessment of a month or two as "just a guess", that did not sit very well with the fact that the money was on deposit only from 30 July to 16 August 2007. Moreover, not only was it the case that neither any member of the McCann family nor Mr Clyde could offer any contemporaneous written evidence of this offer having been made, nothing had been recovered from Presbyterian Mutual or MacDonald Henderson, despite attempted recovery by commission and diligence.

[108] Mr Bowen observed that although the pursuer, Michelle Edens and Mr Clyde had been extensively cross-examined on the veracity of their evidence about an offer for £2.5 million, no separate evidence had been adduced to support that cross-examination. That was true, as far as direct evidence was concerned. The observation however only goes a certain distance. Mr Bowen confirmed that he was not suggesting that there was evidence which might have been led on behalf of the defenders but had not been. Moreover, Mr McBrearty was able to rely on the evidence that had been led about the market value of Sillyhole in July 2007 in putting to Mr Clyde that his evidence that he had been prepared to offer £2.5 million for the site was simply incredible. The pursuer's expert, Mr Bell, had valued Sillyhole at £2.1 million with outline planning permission for residential development. It will be recollected that the land had not as yet been zoned for housing in July 2007, albeit that the Consultative Draft Local Plan published in 2006 had identified Sillyhole as a potential site for the development of fifty houses. Mr Bell's valuation therefore assumed that when the new local plan came to be adopted it would reflect the Consultative Draft, a matter which was still uncertain as at July 2007. Mr Bell also made a variety of further favourable assumptions to the effect that dealing with flooding risk, installing services, accommodating ground conditions, providing for the traffic assessment and meeting affordable housing and developer contribution requirements could all be achieved at no great cost. When regard was had to these imponderables and the consequential risk which a developer was assuming if he acquired the site in July 2007 in the hope that he would be able to build a sufficient number of houses sufficiently cheaply to ensure the expected profit, even on the basis of the valuation proposed by pursuer's expert, £2.5 million seems a rather high price. That proposition is underscored when the undisputed sales are taken into account. In March 2005 the sale price was £650,000, subject to planning permission being granted. In September 2006 the sale price was £800,000, again subject to planning permission. In July 2009, admittedly after the economic downturn had depressed the housing market, the sale price was £500,000, with planning permission.

[109] Although he had put it to Mr Clyde, on the basis of the market value evidence available from the reports of the valuation experts, that it was just incredible that anyone would offer as much as £2.5 million for Sillyhole in July 2007, particularly on an entirely unconditional basis, Mr McBrearty took a more restrained position when it came to submissions. He accepted that there was always the possibility of a purchaser who is prepared to pay "above the odds", as he put it, albeit that the market value of the site in July 2007, even on Mr Bell's approach, gave reason to pause before accepting Mr Clyde's evidence. That was an acknowledgement of the way the matter had been put by Mr Bowen who had emphasised that market value is an estimate of the price that would be struck between a prudent buyer, on the one hand, and a prudent seller, on the other. That model does not accommodate the speculator, that is the purchaser who is prepared to take a significant risk in the hope of a significant profit. As I understood the evidence and the submissions on that evidence, it is not that a prudent buyer does not take risks (a wholly risk averse purchaser would not have offered more than agricultural value for Sillyhole in July 2007) but he reflects them by discounting on the price he would otherwise offer in the way which was illustrated in the evidence of Mr King. The speculator, on the other hand, may be less prudent and more sanguine. On the optimistic view of Sillyhole which Mr Clyde said that he took, even at £2.5 million, there was the potential for a speculator's profit. By July 2007 the Consultative Draft Local Plan had identified the site as having potential for housing. That took away some of the risk but Mr Clyde was also relaxed about possible technical problems. He had viewed the site and liked it because it was large and flat albeit, on his evidence, he appears to have instructed no assessments of, for example, flood risk, ground conditions or likely traffic requirements. According to Mr Clyde he had had experience of land prices in Northern Ireland where prices had reached £1 million per acre for a 10-acre site even with a housing density of five houses per acre. Moreover, notwithstanding the terms of the Consultative Draft Local Plan which indicated fifty houses for the whole of the Sillyhole site with an element of (less profitable) Affordable Housing, he had hopes of obtaining consent for ten to twelve houses per acre. In other words, although £2.5 million appeared a high price when compared with the valuations spoken to by the expert witnesses, at least if Mr Clyde is accepted, it was not so high that a land speculator who took an optimistic view of the site and an optimistic view as to the direction of the market would not offer it.

[110] Understandably, given the importance of the issue, cross-examination of the pursuer and Mr Clyde had been, as Mr Bowen put it, quite extensive. Some of that cross-examination has been detailed above. On the basis of the answers he received, Mr McBrearty submitted that the evidence of the pursuer and Mr Clyde on this issue could not be reconciled and the conclusion that the pursuer had lied could not be avoided. It was Mr McBrearty's position that the Croftmore letter of 18 August 2009 and the demand for £25,000 was nothing other than a spurious attempt to give credence to the suggestion that an offer had been made in 2007. It was relevant to consider the timing of that letter. It came two years after the return of the loan money to Presbyterian Mutual, yet shortly after the onward sale of the land in July 2009 and shortly prior to Professor Rennie preparing his further report (7/37 of process) and the first intimation of claim (7/38 of process). Mr Clyde's evidence had been unsatisfactory in relation to the issue of the fees and interest which he alleged that he had incurred and wished to claim from the pursuer. When considered in light of the evidence of Mr Clyde and the pursuer, the conclusion that the Croftmore letter was prepared at the pursuer's request purely to further his litigation became irresistible. As I have already noted, the pursuer denied knowing about Mr and Mrs Clyde being asked to write supporting his claim and recollected his surprise at receiving the Croftmore letter. That, as I was reminded by Mr McBrearty, did not square with Mr Clyde's answer to me that he had been asked directly by the pursuer to write the letter, and should be regarded as a very significant failure to tell the truth on the part of the pursuer in relation to a matter which went to the heart of the loss that he claimed to have suffered.

[111] I was not particularly impressed by Mr Clyde as a witness but I do not regard it as probable that he would be prepared to collude in putting forward an account of making an offer of £2.5 million which had no basis in fact whatsoever. Similarly, while I have serious reservations about the credibility and reliability of the pursuer and I have come to find Mrs Edens incredible on the question as to whether Mr Gibson admitted fault in concluding the missives, I think it unlikely that they would attempt to perpetrate what would so very obviously amount to fraud. I see it as more likely that there was some basis in fact for the evidence given by these witnesses in relation to a possible offer for Sillyhole. However, accepting it as probable that there was some conversation between the pursuer and Mr Clyde to which Mrs Edens was party or which otherwise came to her attention to the effect that Mr Clyde had an interest in Sillyhole and that a sum of £2.5 million was mentioned, is not the same as accepting that, on the balance of probabilities, the pursuer has established his probandum. What the pursuer avers is the he received an unconditional offer from Croftmore Developments to purchase the subjects for £2,500,000. I am unable to find that he has proved that averment. It is true that there was no evidence to contrary effect. However, the evidence in support was less than entirely convincing. The principal witnesses were the pursuer and Mr Clyde. Notwithstanding my previous observations on how counsel encouraged me to approach the assessment of witnesses, I do not go the distance of regarding them as out-and-out liars who have colluded to fabricate an entirely fictitious account. That would be unwarranted. However, for the reasons given above I cannot regard either the pursuer or Mr Clyde as a necessarily credible and reliable witness. While I am inclined to be less critical of the credibility of Mrs Edens, notwithstanding the one issue on which I have held her to be incredible, her uncharacteristic lack of command of the detail leads me to question her reliability as to whether there was in fact a "serious" offer. There was nothing in writing and therefore nothing which, by formal acceptance, could have had contractual effect. I do not suggest that it was necessary in order for the pursuer to satisfy his probandum that he produce a formal offer to purchase Sillyhole but the fact that writing is required for the constitution of a contract for the sale of heritage means that when matters do not progress beyond purely oral communings it is not easy to determine whether a truly "serious" and unconditional offer has been made. To do that requires the evidence of careful and reliable witnesses. Here there was an absence of such witnesses.

[112] Mr Clyde did not claim to have consulted any professional advisers on the wisdom or feasibility of offering £2.5 million unconditionally for the purchase of Sillyhole. While he expressed his confidence that Presbyterian Mutual would allow him to use the funds on deposit to purchase Sillyhole, I did not understand Mr Clyde actually to have consulted Presbyterian Mutual on the subject. It was explained by Mr Clyde that his principal contact with Presbyterian Mutual, the secretary Mr Colin Ferguson, was seriously ill at the time of the proof and I took it that this may have precluded him from being led as a witness but, for whatever reason, I heard no evidence from either Mr Clyde's potential lender or his then solicitors as to whether funds would have indeed been available for the purchase of Sillyhole. On any view, the sum of £2.5 million was in excess of market value for the site. That is a factor which bears on the probability of Mr Clyde making a serious offer at that price but it also bears on the probability of a lender advancing funds for such a purchase.

[113] I have accordingly not been satisfied, as Mr Bowen had submitted that I should be satisfied, that the pursuer has established on the on the balance of probabilities that an oral offer had been made in July 2007 to purchase Sillyhole for £2,500,000 without outline planning permission and that Croftmore Developments had the funding available to pay the price.

Conclusion
[114] For the reasons given above I find that the defenders have succeeded in establishing that they were not guilty of a failure to exercise reasonable care. However, had I come to the opposite conclusion I would have held that the pursuer has failed to prove any consequential damage.

[115] In relation to the assessment of damage, it was Mr Bowen's submission that the pursuer's claim, depending as it did on the hypothetical actions of a third party, was for the loss of a chance and therefore, providing that he could show that his chance was substantial rather than merely speculative he was entitled to damages, assessment being based on the court's evaluation of how likely it was that the chance would eventuate. Mr Bowen referred to Jackson & Powell on Professional Liability (7th edit and 1st supp) paras 11-165 to 11-168 and 11-182 and Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602 at 1610D, 1621E-G and 1625F-H. I saw in Mr Bowen's submission a recognition that there were, at best, uncertainties associated with Mr Clyde's supposed offer which might be reflected in a discount from the £2 million sum sued for. In my opinion, the route which Mr Bowen pointed to is not open to me. I do not doubt that damages may be awarded for what can be described as a loss of a chance, as is variously explained by the members of the Court of Appeal in Allied Maples but, for understandable reasons, that is not the way in which the claim before me was presented. The pursuer set out to establish that he was the relevant decision-maker, that reasonable care required that the defenders give him certain advice in relation to the proposed clause 4, that that advice was not given, that had it been given he would have taken it, that EASSDA would have agreed to double-sided provision and the result would have been that he would have had the option to withdraw from the contract with EASSDA and then contract with any alternative purchaser who might present himself. Thus far, nothing is hypothetical, other than the question of how the pursuer would have responded to advice, but then he is available to give direct evidence about that. Nothing depends on the unknowable actions of a third party. The pursuer was in a position to lead evidence and did lead evidence on all these points. All were capable of being established on a balance of probabilities and had they all been established on that basis the pursuer would have succeeded in proving that he had suffered loss and damage as a result of negligence and breach of contract on the part of the defenders. As Stuart-Smith LJ observed in Allied Maples supra at 1610A and is very familiar, in civil proceedings once something is established on a balance of probabilities that fact is taken to be true; it is no less true where the balance tips at 51 per cent than where the fact-finder is 100 per cent certain. Had the pursuer established that he had suffered loss and damage as a result of negligence, the question would then arise as to how that loss and damage was to be quantified. There is no one way of doing so. It depends on what evidence a pursuer considers is available to him and how he deploys that evidence. In this case it was the pursuer's contention that there was an actual potential purchaser for Sillyhole in the person of Mr Clyde and that Mr Clyde went the distance of making an actual and "serious" offer, that is an unconditional offer which was open to acceptance and which would have resulted in a binding contract of purchase and sale. Had the pursuer established that on a balance of probability he would, in my opinion, have been entitled to recover damages assessed at the sum sued for, being the difference between what he would have received for Sillyhole from Mr Clyde and what he actually received. However, having failed to establish on the balance of probabilities that Mr Clyde indeed made a serious offer for Sillyhole, the necessary conclusion is that this simply did not happen and, in the absence of further evidence as to what would or might have happened (of which there was none), the pursuer must be taken to have failed to put before the court any basis upon which damages could be quantified.

[116] Accordingly, I shall repel the pursuer's first and second pleas-in-law, uphold the defenders' second and third pleas-in-law and assoilzie the defenders from the conclusions of the summons. I shall reserve all questions of expenses.