Pursuers and Respondents: Bartos; Simpson & Marwick W.S., (for Ness Gallagher & Co, Wishaw)

Defenders and Appellants: Ellis QC, Brodies WS (for Ross Rodgers & Co, Rutherglen)

19 December 2008

1. Agreed Facts

[1] By Missives dated 13, 21 and 28 June and 7 and 12 July 2005, the pursuers agreed to sell to the defenders certain subjects in Salsburgh, Shotts, Lanarkshire, comprising five acres of land upon which, in the year 2000, the pursuers had constructed Woodlands House. Condition 9 of the missives, so far as relevant, stipulated:

"...We [the pursuers' law agents] shall obtain a Coal Mining Report and you will have a period of ten days from receipt of same in which to satisfy yourselves [the defenders' law agents] in relation to the terms of same. In the event that the report contains anything which in the opinion of the Chartered Surveyor appointed by your clients to inspect the subjects would adversely affect the mineral stability of the subjects then your clients will be entitled but not bound to resile from the bargain...".

A period of ten days was allowed for the defenders to intimate, in writing, any decision to resile.

[2] A Coal Mining Report from the Coal Authority dated 15 July was duly obtained by the pursuers' agents. In relation to past underground mining it stated that:

"The property is within the likely zone of influence on the surface from workings in 4 seams of coal at shallow to 60m depth, the last date of working being 1938...".

On the other hand it also reported that the subjects were not within such a zone of any present or proposed workings. In relation to shafts and adits, the report continued:

"Within...20 metres of the property there is 1 mine entry...[W]e have no record of what steps, if any, have been taken to treat the mine entry.

For an additional fee...the Coal Authority will provide a supplementary Mine Entry Interpretative Report. The report will provide a separate assessment for the mine entry... It will give details based on information in the Coal Authority's possession, together with an opinion on the likelihood of mining subsistence damage arising from ground movement as a consequence of the existence of the mine entry...".

A sketch plan showed the location of the mine entry relative to the House, placing it well within the five acre site. The Report confirmed that: the Coal Authority records did not disclose any fault or other line weaknesses affecting the stability of the property; the subjects were not within the boundary of any past, present or future opencast mining operations; and the records did not disclose any damage notices or claims over the previous ten years or thereby.

[3] The Coal Mining Report was sent to the defenders' agents, who received it on 20 July. These agents instructed a Mine Entry Interpretative Report, but such reports take about ten days to prepare and it only became available on 1 August. Quantum valeat, it stated that the House was not at risk from the presence of the mine entry. Meantime, however, the first defender had been shown the Coal Mining Report. On the basis of its content, notably the presence of the four coal seams worked prior to 1938, and without further enquiry, the first defender decided that he did not wish to proceed with the purchase.

[4] The Coal Mining Report was sent to the surveyor instructed by the defenders' agents. This was Robert Clelland MRICS, an associate surveyor with Harvey Donaldson & Gibson, Chartered Surveyors, Glasgow. Mr Clelland produced written "comments" in a letter dated 28 July as follows:

"We note the contents of the report and accordingly recommend the points raised are brought to the attention of the property insurers. An additional report to determine the status of the mine entry will be required before a full assessment can be made by the underwriters.

Should it be determined that the mine entry has not been treated, then this may well have an adverse bearing on the mineral stability of the subjects. Consolidation works would then be necessary to render the entry shaft safe...

We are unable to provide any assurance that the future stability of the property will not be adversely affected by the presence of the mine entry, notwithstanding satisfactory execution of works necessary to stabilise the shaft, should they be required".

No specific mention was made of the pre-war workings on the four coal seams.

[5] On the same date as the surveyor's letter, the defenders' agents wrote to the pursuers' agents formally resiling from the missives:

"and that on the basis that, in the opinion of our clients' Chartered Surveyor, the Coal Mining Report discloses matters which could adversely affect the mineral stability of the subjects".

In a covering letter, the defenders' agents explained that their instructions had followed discussions between the defenders and the surveyor concerning the content of the Coal Mining Report.

2. Pleadings, the Defenders' Evidence and the Objection

[6] Thus far the facts are not in dispute and they are in accordance with the written pleadings of the parties, in which the comments in the surveyor's letter are agreed as amounting to a "written opinion". Having referred to the content of the Coal Mining Report, the defenders aver:

"Mr Clelland's opinion was that, based on the coal mining report, he would not, because he could not, [punctuation added] provide any assurance on mineral stability nor did he think insurance would be available nor could he provide any assurance that resale of the property would not be affected....The defenders had discussed the matter directly with the surveyor. Further the defenders were not satisfied by the coal mining report that the property would not be at risk from mineral instability...".

In so far as these averments refer to the surveyor's opinion, they reflect the content of the letter.

[7] When the case came to proof, the defenders elected to adduce Mr Clelland in evidence in advance of the testimony of the first defender. Mr Clelland said that he had been engaged to carry out a mortgage valuation inspection of the subjects (Transcript of Evidence p 197). He accepted that he had been asked to give his opinion in relation to "mineral stability", which he defined as meaning "a measure of the risk posed to buildings from past underground mining activity". But Mr Clelland quickly said that he did not measure risks and was not an expert in "this field"; not being a mining surveyor. When asked for his view on the effect on mineral stability of the content of a Coal Mining Report, he replied (p 199):

"I cannot say one way or the other. I can only express an opinion. I cannot give a specific answer as to whether a site would be affected by mineral stability (sic) and the effect of any mineral stability on a given site. That is not really my job. It is outwith my remit".

He explained that the content of the Coal Mining Report had caused him to form the view that (p 202):

"it had to be referred to the property's insurers for further consideration... Because there may have been a risk attached to it.

...once coal is removed from the ground it leaves a void and that if the void collapses then it could lead to mineral subsidence on the ground surface and so it is a factor that has to be taken into account in the property insurer or underwriter's risk assessment".

Having spoken about mine shafts having, on rare occasions, caved in on themselves, Mr Clelland was asked the following question (p 204):

"So you talked about a risk in relation to the seams and you talked about a risk in relation to the shaft...Is that risk an adverse [or] beneficial effect?"

At this point the pursuers objected to any line of evidence designed to elicit an opinion from Mr Clelland other than that contained in his letter. The basis for the objection was the lack of fair notice given in the defenders' averments (supra). The objection was repelled by the Sheriff under reservation of all questions of competency and relevancy. Mr Clelland's reply was (p 205):

"I presume that it would have an adverse effect".

When asked what effect the risk might have other than on value, he said (p 205):

"I suppose there could be structural damage if there was collapse or caving in but that is getting out of my field, my area of expertise, as it were".

Struggling somewhat with the surveyor's answers, the defenders' counsel pressed on. Mr Clelland explained that he did not think it would have been a good idea to accept the terms of the Coal Mining Report without investigating further. He accepted that, standing the terms of the missives, the defenders had an option of either accepting the risks or resiling. But when asked what he would have advised and what his opinion was, he responded (p 210):

"It is not really for me to say. It is not my place really".

[8] The defenders' counsel moved swiftly on to a different topic and asked Mr Clelland whether he had had any other contact with the defenders after sending his letter. He responded (p 212):

"From the file there is a note asking me to speak to [the first defender] regarding the Coal [Mining Report]. So I presume I spoke to him but it is that long ago that I cannot honestly remember the details of that".

This was not pursued further. Mr McClelland then confirmed that his view, with regard to mineral stability, remained as stated in his letter. When it came to the first defender's evidence, he too was asked if there was further contact with the surveyor after the letter. He answered (p 225):

"Just a 'phone call to the surveyor asking him his advice on it. His advice was exactly as I have said it there. It could affect the mineral stability and that it would make it harder to resell in the future. Those are the two things that I took from him".

The first defender said that he could not remember anything else in the call and confirmed that the advice, which he had received from Mr Clelland, was the same as was contained in the letter (p 227). The first defender regarded the Coal Mining Report as demonstrating that there was a "big enough risk for me". The surveyor had advised him that the content of the Coal Mining Report would have an adverse affect on the resale value of the subjects.

3. The Sheriff's Judgment

(a) OBJECTION

[9] The Sheriff ultimately repelled the objection to evidence which might have suggested that the opinion expressed by the surveyor was different from that in his letter. He considered that the objection was based on too strict a reading of the record. He explained that (Note para 23):

"Answer 4 does state that the Defenders discussed the matter directly with the surveyor. While it does not cast any light on what the surveyor may have said in the course of that discussion, the evidence I heard was to the effect that the surveyor said that the contents of the Coal Mining Report "could" affect mineral stability. That...is really what he said in his written report. On that basis...reading the pleadings as a whole, including those pleadings that deal with the contents of Mr Clelland's written report, adequate notice was given".

(b) MERITS

[10] The Sheriff made a number of findings-in-fact consistent with the more general narrative given under heading 1 (supra). On the critical issue of the surveyor's opinion, he quoted from the letter of 28 July ((supra) finding-in-fact 16). He then found as fact that:

"17. Mr Clelland made no reference in his written opinion of 28^th July to the effect on the subjects of the four seams of coal.

18. Around the time Mr Clelland issued his written opinion he also had a telephone conversation with the First...Defender. In the course of that telephone conversation he expressed the view that what was disclosed in the Coal Mining Report could affect the mineral stability of the subjects of sale.

...

"21. Mr Clelland's opinion was that what was disclosed in the Coal Mining Report could affect the mineral stability of the subjects of sale. That did not amount to an opinion that it would affect the mineral stability".

On this basis he found that the defenders had not been entitled to resile under the provisions of Condition 9. The pursuers were therefore entitled to damages for breach of contract in that respect and decree was pronounced accordingly.

[11] The Sheriff's reasoning is encapsulated in the following extracts from the Note attached to his interlocutor:

"39. [The pursuers] submitted that this is one of those cases where the enquiry starts and finishes by asking what the ordinary meaning of the words used [in condition 9] is. I am satisfied that this submission is well founded.

40. ...on a plain reading of condition 9 what it does is this. It prescribes the mechanism the purchasers, through their solicitors, can employ to satisfy themselves in relation to the terms of the Coal Mining Report once that is obtained. That mechanism is this. The purchasers can show their surveyor the Coal Mining Report and should that surveyor express the opinion that the report contains anything that would adversely affect the mineral stability of the subjects the purchasers are entitled to resile...

41. ...The Chartered Surveyor is not simply being asked to express an opinion as to whether there is a risk to mineral stability. ...the clause does not say "might" affect mineral stability. "Would" carries a meaning of probability, not possibility. The surveyor's task goes beyond simply stating whether there is a possibility. He is being asked to quantify the risk and express an opinion as to whether the risk has moved from possibility to probability...

47. In his written opinion Mr Clelland makes no mention at all of the effect of the coal seams and former mine workings on mineral stability. He focuses entirely on the mine entry and says "should it be determined that the mine entry has not been treated, this may well have an adverse bearing on the mineral stability of the subjects". That...falls short of probability. It falls short of an opinion that the mine entry "would" affect mineral stability.

48. In [the] telephone call...Mr Clelland...expressed the view...that what was revealed in the Coal Mining Report could effect (sic) mineral stability. This of course is precisely the expression used by the Defenders' solicitors when they wrote formally purporting to resile... "May well" and "could" mean much the same thing. Both mean there is a possibility... [W]hen, during this telephone conversation, Mr Clelland said there could be an effect on mineral stability that accurately described his opinion...

50. Had Mr Clelland stated...that the seams of coal, the workings or mine entry described in the Coal Mining Report affected mineral stability or would affect mineral stability that would end the matter. That however is nothing to the point. He did not. The opinion expressed by him to the Defenders fell short of what was required by condition 9. It did not move from the realm of possibility into that of probability".

4. Submissions

(a) DEFENDERS

[12] The defenders moved the court to recall the Sheriff's interlocutor and to assoilzie the defenders. The submissions made at the Bar were foreshadowed by a helpful and detailed written version. The following paragraphs are an attempt at a composite summary of both written and oral argument. The fundamental proposition was that the Sheriff's interpretation of Condition 9 was one which defied common sense. He had imported into the required opinion from the surveyor the concept of "probability", which was not contained in the Condition. The alternative interpretation, which the defenders sought to apply, was, reduced to its essentials, that "would" meant "could".

[13] It was appropriate to interpret the Condition looking at the information available to the parties at the time they entered into the contract. At that time, it must have been anticipated that a surveyor might not reasonably be able to express any view about mineral stability as a matter of probability, given that the information available, within what was a short timescale, might not have included the content of a Mine Entry Interpretive Report. Further investigations might have been required. The interpretation of mining reports was not the province of a surveyor who inspects and values houses. Such a surveyor would, however, be expected to have expertise on whether what was raised in a Coal Mining Report would have an effect on the value or "saleability" of the subjects.

[14] The Sheriff's interpretation defeated the purpose of the condition. A common sense view of the Condition was that it was designed to give the purchasers protection in respect of mining conditions, about which they may have known nothing, whilst at the same time giving the pursuers comfort in that the defenders could not resile capriciously or without a reasonable basis. What was intended was that the Surveyor could say whether any entries in the Coal Mining Report would (unless clarified by further investigation) have an adverse effect on the value or "saleability" of the subjects.

[15] It was necessary to consider what was meant by the words "mineral stability". It could not mean literally how stable the minerals were. The best meaning was that it referred to the view which the housing market would form of the subjects as a result of what was revealed in the Coal Mining Report in the absence of further investigations. A less attractive alternative was that it related to the stability of the physical subjects themselves. There was no evidence that "mineral stability" was a term of art. One of the background factors which may be of importance was that the risk of instability may have an effect on the value and "mortgageability" of the subjects.

[16] Another issue was what was meant by the phrase "would adversely affect". It may simply be that a risk revealed in the Coal Mining Report would adversely affect the mineral stability. The use of the word "would", as opposed to the word "will", must have been intended to introduce some "conditionality". That raised the question of what circumstances were intended to fulfill the condition and lead to instability. Some condition or event would have to occur before there were an effect on the stability. But the condition or event had not been defined.

[17] The authorities on the interpretation of contracts made it clear that the court is not bound to take a "literalist" approach. Indeed House of Lords' guidance, which has been followed in Scotland, urges a common sense approach. Lord Hoffman's first principle in Investors Compensation Scheme v. West Bromwich Building Society [1998] 1 WLR 896 (at p 912) is that proper interpretation involves adopting the meaning that words used would convey to a reasonable person having all the background knowledge which would be available to the parties. His fourth principle is that the meaning which the words would convey to a reasonable person is not the same as the meaning of the words. His fifth principle is that a detailed semantic analysis may need to yield to a common sense view (see also Antaios Campania Naviera v Salen [1985] 1 AC 191, Lord Diplock at pp 200 - 201). Background can have a very great effect on correct interpretation (Mannai Investment Co v Eagle Star Life Assurance Co [1997] AC 749, Lord Steyn at pp 770 - 771, Lord Hoffman at pp 773 - 775; see also Sirius International Insurance Co v FAI General Insurance [2004] 1 WLR 3251, Lord Steyn at pp 3257 - 3258). Circumstances may be important in rejecting an interpretation which is "uncommercial and literalistic". These methods of interpretation have been received into Scots law (Bank of Scotland v. Dunedin Property Investment Co 1998 SC 657, Lord President (Rodger) at p 661, Lord Kirkwood at p 670, Lord Caplan at p677; City Wall Properties (Scotland) v Pearl Assurance [2007] CSIH 79, Lord Philip at para 23). A commercially sensible interpretation will be favoured. Where there is a choice of meanings, the most reasonable in context, will be adopted. However, it was conceded that if the plain words point to a particular meaning, then that may be an end of the matter whatever the result.

[18] On the evidence, the defenders had been entitled to resile. The evidence was clear that the matters in the Coal Mining Report had demonstrated a risk to the physical stability of the surface of the property. They also, without further investigation, affected the "saleability" of the subjects. They would have affected the saleability of the subjects in the future even if further investigation had revealed that the old mine shaft had been properly stabilised.

[19] Based on the evidence, certain alterations required to be made to the findings- in-fact. In particular, findings 17 and 21 should have read as follows:

"17. Mr Clelland was of the view that the reference to the four seams of coal could also affect the stability of the subjects. Mr Clelland made no specific reference in his written opinion of 28^th July to the effect on the subjects of the four seams of coal"; and

21. Mr Clelland's opinion was that what was disclosed in the Coal Mining Report could affect the mineral stability of the subjects of sale. That did not amount to an opinion that it would affect the mineral stability In his view what was revealed could cause structural damage. This is because where coal is removed it leaves a void and if the void collapses it could lead to mineral subsidence on the ground surface. The risk of structural damage would be an effect on "mineral stability". It would be an adverse effect. The matter would need to be referred to the purchasers' insurers. He could not provide any assurance to the purchaser about mineral stability. He advised the purchasers not to accept the terms of the Coal Mining Report without further investigations. The saleability of the subjects may well have been affected by the presence of the mine entry. Such an effect may not have been removed by satisfactory execution of stabilisation works".

[20] In relation to the objection, the Sheriff had been correct in repelling it, standing the defenders' averments. In any event, even if the evidence were excluded, it would not prevent the defenders succeeding in the appeal on their principal argument, that the Sheriff's interpretation of Condition 9 was wrong.

(b) PURSUERS

[21] The pursuers moved the court to refuse the appeal and to adhere to the interlocutor of the Sheriff. First, the Sheriff had reached the correct construction of Condition 9. So far as the law was concerned, it remained the case that the primary source of understanding what parties mean in a contract is their language interpreted according to conventional usage. The language was of paramount importance (Glasgow City Council v. Caststop 2003 S.L.T. 526, Lord Kirkwood (delivering the Opinion of the Court) at para [21]), approving the approach of Lord Macfadyen (2002 S.L.T. 47 at para [33]), where he reconciled the approaches of the Lord President (Rodger) in Bank of Scotland v. Dunedin Property Investments Co (supra) and Lord Hoffman in Investors Compensation Scheme v West Bromwich Building Society (supra). This was because (a) the meaning conveyed by the words to the reasonable person having all the background knowledge available to both parties at the time of the contract and (b) the ordinary meaning of the words, are substantially the same; with the qualification that Lord Hoffman's formulation allows for parties using words in a specialised sense. The importance of background circumstances is a matter of degree (Glasgow City Council v. Caststop (supra); and see Lord Hoffman in Bank of Credit and Commerce International v Ali [2002] 1 AC 251 at para 39, explaining his dicta in Investors Compensation Scheme v West Bromwich Building Society (supra) at pp 912 - 913). If the ordinary meaning of the words used is clear, then there is no need to refine them (Melanesian Mission Trust Board v Australian Mutual Provident Society (1997) P&CR 297, Lord Hope of Craighead (delivering the judgment of the Board) at p 301).

[22] Both parties were aware at the time of contracting that there was a possibility of mineral instability, however remote. This explained the provision for the obtaining of the Coal Mining Report in Condition 9. The parties decided that there would be a right to the defenders to resile only if the surveyor reached a particular opinion. The parties took the view that the surveyor would be able to reach such an opinion within ten days of receipt of the Report; notably that he could state whether it contained anything that would adversely affect mineral stability. In other words, the

parties settled on the solution that there would have to be more than the mere possibility, however remote, of mineral instability. The Condition was there for both parties' benefit. Unless there were something which would genuinely affect stability, the contract would continue to apply. The Condition attempted to strike a balance between the two parties, and was negotiated by them in that context.

[23] As in Glasgow City Council v. Caststop (supra) the importance of the surrounding circumstances was relatively low. The parties could have chosen any solution they thought fit as the touchstone of the right to resile. The wording of the solution was paramount and was clear in its meaning. What the surveyor required to do was judge whether there was anything in the Coal Mining Report which would affect the mineral stability of the subjects; meaning the physical stability of the ground and not any issue of value or "saleability". No refinement of the words, including the introduction of probability, was necessary; although the Sheriff's probability refinement was not an unreasonable one.

[24] The sheriff's construction yielded a reasonable result and did not offend common sense. It was the surveyor's opinion which counted and the burden was put upon him to reach a determination within a reasonable time. It was a matter for the defenders to select an appropriate surveyor. All that the surveyor had to do was express an opinion on likely adverse affect. He did not have to express a view that damage would occur. But the surveyor selected by the defenders appeared unable to make the required assessment. His judgment was that the content of the Coal Mining Report could affect the mineral stability, but he was unable to go any further than that. He did not have to repeat the express words of the Condition for that Condition to be satisfied, but he did have to say something from which it could reasonably be inferred that he meant that the stability would be adversely affected.

[25] The construction suggested by the defenders was not available on the words used. If the Defenders had wished to have the right to resile dependent on the mere possibility of adverse effect, then they should not have accepted the wording which they did. The Sheriff had not erred in concluding that what the surveyor had written in his letter did not meet the test in the Condition. Indeed the letter of recission itself did not do so and used only the word "could".

[26] In relation the objection, if there were evidence to justify the proposed alterations to the findings-in-fact, then the Sheriff had erred in sustaining the objection; thereby allowing that evidence to be led. The evidence concerning the telephone call was not a problem if it did not disclose, as the Sheriff held it did not, a different opinion from that expressed by the surveyor in his letter. The defenders' proposed amendments to the findings-in-fact added to the content of that written opinion.

5. Decision
[27] There is no difficulty in identifying the appropriate method of construing Condition 9. The principles are set out clearly and succinctly by Lord Macfadyen, sitting in the Outer House, in Glasgow City Council v Caststop (supra). There is little purpose in attempting to rephrase, to refine or to put a gloss on the words he used (at para [33]), which were that:

"On the one hand, the approach adopted by the Lord President in Bank of Scotland v Dunedin Property Investment Co Ltd involved first inquiring as to the ordinary meaning of the words used, then, having reached a conclusion on that matter, considering the surrounding circumstances in which the contract was entered into to see whether they affected the result of the original inquiry. On the other hand, the approach advocated by Lord Hoffman in Investors Compensation Scheme Ltd runs those two stages together, by regarding the task of construction as the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge reasonably available to the parties in the situation in which they were at the time of the contract. Whichever of these approaches is adopted,...the result should be the same. The language of the contract is of paramount importance. As Lord Mustill said in Charter Reinsurance Co Ltd v Fagan [[1997] AC 313] at 384B, in a passage quoted with approval by the Lord President in Bank of Scotland v Dunedin Property Investment Co Ltd at 661G: "the inquiry will start, and usually finish, by asking what is the ordinary meaning of the words used".

That is the approach which was expressly adopted by the Sheriff (supra, Note para 39). The issue then becomes whether what he maintains is the ordinary meaning of the words used is correct.

[28] The Sheriff's interpretation of the words used in Condition 9 as expressed in his Note is faultless, with perhaps one minor exception. The Condition was inserted to protect the defenders against the risk that the subjects might be adversely affected by mineral workings. But it contained elements that operated for the benefit of both parties. First, it gave the defenders the right to resile if it transpired that there was a problem with the mineral stability. Secondly, it protected the pursuers in that it required a professional, and hence independent, judgment on whether there was such a problem. Giving the words their ordinary meaning, whether in the context of the surrounding circumstances or otherwise, they required, for rescission to be merited, the surveyor to express an opinion which went beyond there being a mere possibility of an adverse affect on the mineral stability of the subjects as a result of the content of the Coal Mining Report. Had a possibility been sufficient then the Condition would have to have said "could" rather than "would". Had it done so then the surveyor's comments in his letter might have justified rescission on the basis that they did express such a potential.

[29] The Sheriff goes on to express a view that "would" conveys a notion of "probability". The use of the word "would" indicates that, for rescission to be possible, the surveyor had to form a professional judgment that there was something contained in the Coal Mining Report relating to mine workings that was of such materiality that it affected the stability of the subjects; the "subjects" being the whole area of land for sale. In that context, the Sheriff did not, perhaps, have to travel the distance he did in relation to "probability". But what is certain, and ultimately determinative, is that "would" in its context in Condition 9 means more than "could".

[30] Before considering what the surveyor's opinion was, the objection ought to be determined. A reasonable reading of the defenders' pleadings is that the defenders were relying on the written comments in the surveyor's letter, and on nothing else, as being the expressed opinion upon which the decision to resile was based. The averments do mention that there was discussion between the defenders and the surveyor, but there is no averment of the content of that discussion. If the defenders were founding upon something other than the wording in the letter as being the opinion of the surveyor expressed at the time, they would have been bound to make appropriate averments stating what the different or further opinion had been and how it had been expressed. This is not just a technical matter. Had fair notice been given that, for example, a different or further opinion had been expressed in a telephone conversation between the surveyor and the first defender, the content of that notice could have been put to the surveyor for his comment when he was giving evidence. As it was, he simply said that he could not remember the conversation and matters were left at that until the first defender was invited to give what was effectively hearsay evidence of what the surveyor had said. Accordingly, the objection ought to have been sustained although, as matters transpired, this would have had no effect on the Sheriff's judgment since he held that the surveyor's opinion as expressed at the time did not go beyond the content of the letter.

[31] Proceeding on the basis that the opinion of the surveyor is, one way or the other, confined to what he wrote in his letter, it is significant that he did not seem to address squarely whether the terms of Condition 9 had been met. His comments were upon matters such as insurance and "saleability". The only direct comment of relevance was his view that, if the mine entry had not been treated (and no steps appear to have been taken to check whether that was so in advance), then that "may well have" an adverse effect on the mineral stability of the subjects.

[32] The submission that the meaning of an adverse affect on "mineral stability" was in some way related to the value or "saleability" of the subjects is rejected. Whatever may have been argued at the appeal stage, before the Sheriff it appears to have been accepted that "mineral stability" related to the physical stability of the ground relative to past underground mineral workings; no doubt in particular in relation to buildings, actual or proposed. There is no reason to depart from that accepted position now, since it too appears to give the words a "common sense" ordinary meaning.

[33] Equally, the proposition that the parties must have anticipated that the surveyor would not have been able to reach a judgment on the issue focused in Condition 9 cannot be accepted. On the contrary, the terms of the Condition make it plain that the parties thought that a surveyor would be able to form the relevant judgment in the time allocated. The fact that the surveyor selected felt unable to do so is beside the point. There appears to be no reason to suppose that a properly qualified surveyor, perhaps one with experience in the many areas of Lanarkshire blighted by coal workings, could not have reached an appropriate view within the selected time-scale. Indeed, it may even be that such a surveyor could have expressed an opinion that the content of the particular Coal Mining Report was such that the mineral stability of the subjects would indeed be adversely affected.

[34] What is clear, however, is that this particular surveyor did not express such a view, either at the time or when giving evidence. As the Sheriff has found, the content of the letter does not contain an opinion that there was anything in the Coal Mining Report that "would" adversely affect the mineral stability of the subjects. It follows that the Sheriff's finding-in-fact number 21 must be adhered to in its current form and the appeal must fail.

6. Interlocutor and Findings in Fact

[35] There were a number of other proposed alterations to the findings in fact. The first was an alteration to finding 6, by substituting "sixty" for "sixteen". This was agreed as appropriate and seems only to have been a typographical error. It will be allowed. Secondly, the defenders proposed to add to finding 13 material to the effect that it was known at the time of the Missives that a Mine Entry Interpretive Report was not likely to be available within the ten day period and that such a Report would be required for a full assessment of the effect of the mine shaft. However, as the pursuers correctly submitted, there was no evidence that the parties had even considered the desirability of a Mine Entry Interpretative Report at the time of entering into the Missives. Accordingly the proposed addition is rejected. Thirdly, the defenders proposed that the rehearsal of the surveyor's letter in finding 16 should have included the ending quoted above, viz:

"We are unable to provide any assurance that the future stability of the property will not be adversely affected by the presence of the mine entry, notwithstanding satisfactory execution of works necessary to stabilise the shaft, should they be required".

That was not objected to and will be added. Fourthly, the proposed alterations to finding 17 (supra) will also be allowed as they were not opposed and do not add anything to the issue. Fifthly, the appellants proposed that the word "mineral" prior to "stability" ought to be deleted from findings 18 and 21. Such a deletion is not in accordance with the evidence that, whatever it meant, the surveyor was expressing a view on the "mineral stability" of the subjects. These findings, also for the reasons advanced above, will remain unaltered. In short the only changes will be to findings-in-fact 6, 16 and 17 and, in accordance with the decision to sustain the objection, the second sentence of finding-in-fact 18 will be deleted.

[36] The appeal in accordingly refused and, other than in relation to the objection (supra) and the alterations to the findings-in-fact, the Court adheres to the interlocutor of the Sheriff dated 21 May 2007.