THE UNIVERSITY COURT OF THE UNIVERSITY OF ST ANDREWS AND OTHERS AGAINST HEADON HOLDINGS LIMITED AND OTHERS
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 113
CA241/14
OPINION OF LORD TYRE
In the cause
THE UNIVERSITY COURT OF THE UNIVERSITY OF ST ANDREWS AND OTHERS
Pursuers;
against
HEADON HOLDINGS LIMITED AND OTHERS
Defenders:
Pursuer: Sandison QC; Burness Paull LLP
First, Third and Fourth Defenders: Cormack (Solicitor Advocate); Pinsent Masons LLP
Second Defender: Murphy QC; DWF LLP
20 August 2015
Introduction
[1] This is a dispute among the parties to a joint venture agreement entered into on various dates in 2002 and 2003 for the purposes of obtaining planning consent for the development of an area of land to the west of St Andrews and of optimising the sale value of the land. The agreement was entered into for mutual advantage by five parties. Four of the parties, described in the agreement as “the joint venturers”, shared the characteristic of holding title to parts of the area of land proposed to be developed. Those parties were the University Court of the University of St Andrews (the first pursuers), the trustees of a private trust called the Strathtyrum Trust (the second pursuers), a company called Headon Holdings Limited (the first defender), and Mr William and Mrs Alison Cuthill (Mr Cuthill has since died and Mrs Cuthill is the second defender). The fifth party to the agreement was the intended developer, a company called Pollpledge Limited (the third defender). The first, third and fourth defenders are under the common control of Mr Joseph Headon. No development has yet taken place.
[2] The dispute has arisen because in about 2014 the pursuers discovered that in September 2000, prior to the first defender acquiring its area of land (“the Headon land”) from Mr and Mrs Cuthill, the first defender entered into a minute of agreement with the Cuthills the effect of which was that the first defender would hold the Headon land – and any sale proceeds thereof – in trust for the Cuthills and would pay the sale proceeds to them, under deduction of part or all of the price paid by the first defender to the Cuthills for title to the Headon land. Having become aware of this agreement, the pursuers now seek inter alia reduction of the joint venture agreement on the grounds (i) that it was entered into by them in reliance upon a material misrepresentation by the first and second defenders regarding ownership of the Headon land; and (ii) that the first and second defenders were in breach of a duty to disclose material facts to the pursuers at the time when the joint venture agreement was entered into.
[3] The action came before me for debate of the defenders’ general pleas to the relevancy of the pursuers’ case.
The joint venture agreement
[4] The joint venture agreement was executed by the first pursuers, the second pursuers and the Cuthills on various dates in September, October and November 2002, and by officers of the first and third defenders in October 2003. Although a party to the agreement, the third defender is designed in it as “the Developer” and is not included within the definition of “Joint Venturers”. The agreement is lengthy and detailed, and for present purposes it is unnecessary to narrate more than a few of its provisions. The objects for which the joint venture was established are set out in sub‑clause 1.3 as follows:
- to obtain zoning for residential and commercial development;
- to obtain outline planning consent with a view to achieving the value per acre specified in a development appraisal annexed to the agreement;
- to achieve agreement on a master plan for the development land including, if necessary, construction of infrastructure;
- to optimise the sale value of the development land;
- to market up to 25% of the development land for sale to unconnected third parties;
- to sell 75% of the development land to the third defender or its nominees at 95% of open market value.(I note in passing that the fourth defender is the third defender’s nominee.)
Clause 1.4 provides that the joint venturers will forthwith apply for VAT registration as persons carrying on business in partnership with regard to the joint venture, with a view to early recovery of input tax.
[5] Clause 4 is entitled “Mutual duties of the Joint Venturers and the Developer”. Sub‑clauses 4.1 and 4.2 state:
“4.1 Each Joint Venturer and the Developer (if appropriate in pursuance of its duties hereunder) will co-operate with each other and act in fairness and in good faith to enable each other to discharge their duties and enable the Joint Venture Objects to be attained and accordingly will respond promptly to requests properly made by the others for approvals, information or assistance.
4.2 Each Joint Venturer and the Developer will at all times make full disclosure to the others of relevant information, data reports and opinions obtained in relation to the Joint Venture.”
Sub‑clause 4.4.4 requires each Joint Venturer, and the Developer if appropriate, to:
“ensure that where they have rights over Development Land belonging to another Joint Venturer not to enforce those rights to the prejudice of the Joint Venture and/or the Joint Venture objects”.
The Headon/Cuthill minute of agreement
[6] The minute of agreement entered into between the first defender (referred to therein as “the Purchaser”) and the Cuthills (referred to as “the Seller”) on 20 and 22 September 2000 began by reciting that the Purchaser wished to purchase “an option over” the Headon land; that the parties intended to promote the western expansion of St Andrews along with neighbouring landowners; and that the Seller would have the right to occupy the subjects free of charge until a sale to a third party took place. The agreement then provided that the Purchaser would pay £249,000 (“the deposit”) to the Seller in exchange for a conveyance of the Headon land. The agreement specified that the conveyance was to be in the form of a feu disposition, and set out various real conditions to be included in the disposition. These included a prohibition on transfer of the subjects outside the Headon family group of companies. The duration of the agreement was 11 years, but the Purchaser was given a right to renew the agreement for a further term of 12 years at no cost, or to require the Seller to repurchase the subjects at the price of £125,000. Clause 5 then provided as follows:
“If the subjects are sold at any time to a third party in accordance or not in accordance with any agreement that is reached between the Land-owning Parties the entire proceeds will be subject to such agreement (if any) be paid to the Seller and the Seller will repay to the Purchasers any balance of the deposit still outstanding namely if the sale is within twelve months of payment of the deposit the entire deposit, if within twenty four months 9/10th of the deposit and so on until the expiry of the 11th year. Declaring that for the purposes of this clause and in connection with the sale of the subjects to a third party as in the whole course of this agreement, the Purchaser and their successors… shall act as Trustees for the Seller and hold the title of the subjects until the date of registration or infeftment of the third party and the proceeds of sale thereof until disbursed to the Seller as Trustees for the Seller who alone is beneficially entitled thereto.”
[7] A feu disposition was duly granted by the Cuthills on 1 December 2000 in favour of the first defender, and registered in the Land Register. It bears to be an absolute disposition of the Headon land in consideration of the price of £249,000. It is, however, granted subject to certain real conditions, all in accordance with the terms of the minute of agreement, including the following:
“(Three) my said disponees and their foresaids shall be prohibited from the sale, transfer, lease or any alienation of the said subjects hereby disponed other than to a Limited Company as listed in the first schedule to the Minute of Agreement between us and Headon Properties Limited dated Twentieth and Twenty second September Two Thousand, or such other Company or Organisation as may qualify as being under the control of Members of the Headon Family or the Family Companies so listed, but that such transfer shall only be with the consent of us as proprietors of the said adjoining subjects, which consent shall not be unreasonably withheld.”
The pursuers’ averments
[8] The pursuers aver that they were not made aware of the agreement between the first defender and the Cuthills. On the contrary, they say, they were led to believe that the first defender enjoyed the beneficial interest in whatever profit or return might be made from the future development of the Headon land. This belief arose from statements made on various occasions by Mr Headon and others, narrated in the pursuers’ pleadings as follows:
- a statement by Mr Cuthill at a meeting on 31 May 2000 that Mr Headon had acquired land from him and would wish to be a landowner participant in the proposed development;
- statements by Mr Headon at a presentation on 23 October 2000 (not challenged by or on behalf of the second defender) that his “company had acquired land from Bill Cuthill”; that he (Mr Headon) “like the other parties here today [had] a great interest in seeing this land obtain development status”; that “We would all like to get the maximum value for our own land”; that “At the end of the day each landowner will receive the full value of his land less the appropriate costs”; that he was present “as a fellow landowner”; and that “Headon Developments’ incentive for this to work is great as we have purchased some of the land”;
- a statement by a solicitor acting on behalf of the first defenders on 3 July 2001 that Mr Cuthill had largely sold out to Mr Headon but retained a ransom strip and so required to remain in part of any development proposals;
- a statement by Mr Headon in a letter dated 10 July 2001 that his “role as a fellow landowner [was] to achieve the maximum return on all land sales;
- a further statement by Mr Headon at a meeting on 8 November 2001 that the first defender would work as a landowner to maximise land values; and
- statements in a submission drafted by “Headon Developments” for submission to Fife Council and circulated to other prospective joint venturers that “each landowner [had] a share in the JV in proportion to their landholding” and that “the proceeds of the development are shared between the landowners pro rata to the landholdings”.
The pursuers assert that the fact that the first defender was not the “beneficial owner” (which expression is used by the pursuers – and I adopt the usage here – to mean a person who would enjoy the beneficial interest in whatever profit or return might be made from the future development of the land) was a matter that they would have regarded as important in deciding whether to enter into the joint venture and, if so, on what terms. The first and second defenders knew or ought to have known that it was a material fact. The first defender was closely connected to the developer. The effect of the first defender being admitted as a joint venture was that it received privileges such as a right to participate and vote in the joint venturers’ deliberations on matters directly affecting its associated company, and to block agreement on a wide range of important issues. Had the pursuers been aware of the true nature of the first defender’s interest, they would not have admitted the first defender to the proposed joint venture and would not have entered into the joint venture agreement.
[9] In these circumstances, the pursuers contend, firstly, that the first and second defenders’ representations as to the nature of the first defender’s interest in the Headon land were material misrepresentations which were relied upon by the pursuers in their decision to enter into the joint venture agreement. The pursuers further assert that given (a) these defenders’ awareness of the true nature of the interest; (b) their awareness of its likely effect on the willingness of other joint venturers to admit the first defender to the joint venture; (c) the fact that the content of the Headon/Cuthill agreement was not made a matter of public record; and (d) a refusal by Mr Headon to answer questions put to him about the nature of the agreement once suspicions about its existence had been raised, the misrepresentation was made fraudulently or at least negligently with a view to inducing the pursuers to act as they did. Secondly, the pursuers contend that the failure of the first and second defenders to disclose, prior to execution of the joint venture agreement, the true nature of the first defender’s interest in the Headon land was a breach of a duty incumbent upon them to disclose all facts which would or might be material to the other negotiating parties in the latter’s decisions as to whether to enter into the joint venture and, if so, on what terms.
Arguments for the parties
[10] On behalf of the first, third and fourth defenders, and on behalf of the second defender, it was submitted that the action should be dismissed as irrelevant. Put briefly, the defenders’ arguments were:
(i) that the pursuers had failed to aver any statement amounting to a misrepresentation by or on behalf of any of the defenders as to ownership of the Headon land;
(ii) that in any event there were insufficient averments upon which to found an allegation of fraudulent or negligent misrepresentation;
(iii) that the circumstances pled did not give rise to any duty of disclosure incumbent upon any of the defenders;
(iv) that in any event even if there was a duty of disclosure, the scope of the duty did not extend to disclosure of the fact that the first defender was not a “beneficial owner” of the Headon land.
[11] On behalf of the pursuers it was submitted that neither the issue of misrepresentation nor the issue of breach of duty of disclosure could be determined without an inquiry into the facts, and so proof before answer should be allowed.
Alleged breach of duty of disclosure
[12] I consider it logical to begin by considering the pursuers’ case based on breach of a duty of disclosure. The first question is accordingly whether the circumstances averred by the pursuers gave rise to a duty of disclosure by the defenders of facts which they knew or ought to have known would or might be regarded by the pursuers as material to their decision whether or not to enter into the joint venture agreement.
[13] As a general rule, a party to a contract owes no duty of pre-contract disclosure to the other party. As Gloag observes (Contract, 2nd ed, 1929, page 457):
“In ordinary contracts the general rule is that each party relies on his own means of knowledge, and cannot complain if the other possesses more accurate information which he does not disclose”.
There are, however, exceptions, as Gloag puts it (ibid page 496), firstly in relation to certain special contracts, and secondly in relation to contract in general when the parties stand to each other in some special relationship. The first of these categories comprises those contracts referred to as requiring uberrima fides, ie utmost good faith. According to Gloag’s analysis, the two categories share the common characteristic:
“…that one or both of the parties is bound to disclose all material facts known to him, and that failure in disclosure is a ground for the reduction of the contract. Concealment or non-disclosure… has the same effect as innocent misrepresentation in contracts where there is no fiduciary element.”
[14] The best-known example of a contract uberrimae fidei is a contract of insurance, but Gloag lists four more, namely cautionary obligations, sale of heritage, invitations to take shares in a company, and proposals to enter into partnership. As to the latter, Gloag states at page 507:
“There is an obvious analogy between the issue of the prospectus of a company and an invitation by a private trader to join him in partnership. And it is probably the law that the latter case also involves uberrima fides. It is decided that where a new partner is taken into a business, any misrepresentation as to the nature and resources of the business, though not made fraudulently, will entitle the new partner to reduce the contract and recover the capital he has contributed; but these decisions proceeded on general principles of law, without laying any stress on the nature of the particular contract. It has not been definitely decided whether in such a case the existing partner has also a duty of disclosing all material facts; but as such a duty lies on the party who invites the public to join him in a company, it must almost necessarily be held that it lies equally on one who invites an individual to join him in partnership.”
The analogy drawn by Gloag between entering into a partnership and responding to a company prospectus has been doubted in Miller, Partnership (2nd ed, 1994) at pages 159-60, where the view is expressed that Gloag’s analogy:
“…goes no further than to establish a fiduciary relationship between the parties and does not warrant the imputation of the doctrine of uberrima fides unless that term is loosely used as equivalent to a fiduciary duty.”
[15] There is English authority in support of the proposition that a positive duty of disclosure is incumbent upon parties negotiating their entry into partnership with one another. In Bell v Lever Bros Ltd [1932] AC 161, Lord Atkin observed, obiter, at page 227:
“Ordinarily the failure to disclose a material fact which might influence the mind of a prudent contractor does not give the right to avoid the contract. The principle of caveat emptor applies outside contracts of sale. There are certain contracts expressed by the law to be contracts of the utmost good faith, where material facts must be disclosed; if not, the contract is voidable. Apart from special fiduciary relationships, contracts for partnership and contracts of insurance are the leading instances. In such cases the duty does not arise out of contract; the duty of a person proposing an insurance arises before a contract is made, so of an intending partner.”
It is worth noting that Lord Thankerton, when addressing the same point at pages 231‑2, did not include contracts of partnership among his examples of cases where a duty of disclosure arose. Lord Atkin’s dictum was, however, applied by the Court of Appeal in Conlon v Simms [2008] 1 WLR 484, in which the court held (at paragraphs 127‑8, approving the analysis of Lawrence Collins J at first instance) that prospective partners had a duty to disclose material matters. There is no further discussion in the judgment of the Court of Appeal of the reasons why a higher duty of disclosure should apply to parties negotiating the terms of a partnership agreement than to parties negotiating the terms of other types of contract. Lawrence Collins J appears to have derived support from the fiduciary duties incumbent on partners during the subsistence of a partnership.
[16] In Conlon v Simms, the information that the defendant was said to have failed to disclose was that he had acted dishonestly in his professional capacity with regard to certain transactions in the past. In other words he had failed to disclose information affecting or likely to affect his status as a partner in a solicitors’ firm. (The non‑disclosure in Andrewes v Garstin (1861) 10 CBNS 444, an authority relied upon by Lawrence Collins J in reaching his decision, similarly concerned alleged past dishonesty.) It was submitted on behalf of the second defender that the reason why disclosure of such information was required was because it constituted superior knowledge that only the defendant could provide to his prospective partners. This is the usual rationale for the duty of disclosure that arises in contracts uberrimae fidei, and in particular in contracts of insurance, where facts material to the insurer’s risk will generally be known only to the proposer and otherwise undiscoverable by the insurer. It is not an entirely satisfactory explanation of the scope of the duty of disclosure incumbent on a prospective partner because, as Lawrence Collins J observed in Conlon v Simms (at paragraph 200, quoted by the Court of Appeal at paragraph 87), it may amount to no more than saying that there is no duty to disclose what is already known. But a duty incumbent on a prospective partner to disclose every fact that he knew or ought to know would or might be regarded as material by the other prospective partner seems to me to go further than necessary to protect the interests of persons negotiating a commercial agreement, even one that will result in them owing fiduciary duties to one another after the partnership has been entered into. I have already noted that Gloag regarded this matter as “not definitely decided”, and I was not referred to any more recent Scottish authority concerning prospective partners. It may well be that if a case with facts similar to Conlon v Simms fell to be decided in Scotland, the outcome would be the same, but founded on fraudulent misrepresentation rather than breach of duty to disclose: cf Broatch v Jenkins (1866) 4M 1030, and the observations of Lord Bingham of Cornhill in HIH Casualty and General Insurance Ltd v Chase Manhattan Bank [2003] 1 CLC 358 at paragraph 21.
[17] The present action does not, of course, concern a partnership, but rather a joint venture, albeit one which the parties to it agreed would be registered as a partnership for VAT purposes. The expression “joint venture” has no statutory definition, and is broadly used to refer to a business relationship between or among two or more persons which may or may not take the form of a partnership. It is not necessarily, as senior counsel for the pursuers submitted, a sub-species of partnership but may be entered into on terms that fall outwith the statutory description of partnership in the Partnership Act 1890. The joint venture with which these proceedings are concerned had as its broad object the exploitation of ownership of land. The parties obliged themselves to co-operate with a view to enabling the object to be obtained, and clause 2.2.1 lists a number of matters which require the unanimous consent of the joint venturers, but (in contrast to the developer) they did not commit themselves to doing much by way of positive action towards achieving the object. The agreement made no provision in respect of liability for debts of or losses incurred by the parties. There appears to be no common property, and no provision was made for any of the joint venturers to have authority to bind the others in contracts with third parties. Looking at the situation as a whole I am not persuaded that this particular joint venture is properly to be characterised as a partnership or indeed as analogous to a partnership for the purposes of applying the law of uberrima fides and pre-contractual duties of disclosure.
[18] Reference was made in the course of the debate to the case of Hamilton v Allied Domecq plc 2006 SC 221, which concerned a contract entered into for the purpose of marketing natural spring water under the name “Gleneagles”. The contract took the form of a subscription agreement in terms of which a subsidiary of the defenders acquired a majority shareholding in a company hitherto owned and controlled by the pursuer and an associate. The business failed, and the pursuer raised an action for damages against the defenders on the ground of alleged misrepresentation by the defenders of their intended marketing and distribution strategy for the water. In the course of delivering his opinion, Lord Hamilton observed:
“It is, rightly, not suggested on behalf of the pursuers that the legal relationship between them and Allied at the relevant time imposed, of itself, any duty of disclosure; parties were not in a relationship uberrimae fidei.”
The facts of Hamilton were very different, but in my opinion the analysis in the present case ought, in principle, to be the same. The purpose of the joint venture was exploitation of property, as in Hamilton. There was no inequality of knowledge in the sense that any party was in possession of private information that another party could not ascertain prior to contractual commitment. The situation is therefore different from that of a proposal for insurance or a subscription for shares in reliance upon information in a company prospectus. In my opinion the imposition of a duty of disclosure in the circumstances of this case would be an innovation supported by neither principle nor precedent. I therefore hold that the pursuers’ case based upon uberrima fides and a duty of disclosure is irrelevant.
[19] The defenders also took issue with the pursuers’ assertions (i) that the fact that the first defender was not a “beneficial owner” of the Headon land was regarded by the pursuers as a matter of materiality; (ii) that the defenders were or ought to have been aware that it was so regarded; and (iii) that the nature of the first defender’s interest was not readily discoverable if the pursuers had noted the reference in its title to the Headon/Cuthill agreement. Had I held that the defenders, or any of them, were under a duty to disclose the nature of the first defender’s interest to the pursuers, I would have accepted the pursuers’ submission that these, along with the pursuers’ averment that they would not have entered into a joint venture agreement on the terms they did, were matters requiring proof before answer. In the absence of any duty of disclosure, however, there is no need to explore them.
Misrepresentation
[20] The pursuers’ case of misrepresentation is founded upon the statements averred to have been made by Mr Headon and others that I have set out at paragraph 8 above. The case is thus based on alleged positive representations as opposed to implied misrepresentation by silence. I was referred by the defenders to various well‑known and uncontroversial dicta describing the obligation incumbent upon anyone pleading fraudulent misrepresentation to specify with precision how, where, when and in what context the alleged misrepresentation was made. Reference was also made to a passage from the opinion of Lord Justice Clerk Gill in Hamilton v Allied Domecq (above) at paragraph 2 indicating that a similar standard of precision is required for an allegation of negligent misrepresentation. I need not rehearse these dicta because in my view no difficulty arises in the present case regarding the adequacy of the specification of the date, occasion or context of any the statements upon which the pursuers’ contention is founded. In any event it is not necessary for the pursuers to prove either fraud or negligence, as even a non-negligent innocent misrepresentation may entitle the other party to set aside the contract (though not to claim damages) if he can establish that it induced him to enter into the contract and that restitutio in integrum remains possible. The issue is rather whether the pursuers have averred a context in which any of the statements allegedly made amounts to a misrepresentation at all.
[21] In my opinion the pursuers have failed to aver any misrepresentation on the part of any of the defenders or anyone speaking on their behalf. The pursuers’ interpretation of the various statements set out above is entirely dependent upon the distinction that they draw between ownership and “beneficial ownership” as defined earlier. That argument is circular. If it is correct to describe a person with a registered title to land as “the landowner”, then none of the statements objected to on the ground of the use of the word “landowner” is inaccurate. The same applies to statements to the effect that the first defender had purchased land from the Cuthills; as narrated above, that was indeed the case. What the pursuers complain of is that the land was purchased, and title taken to it, subject to an agreement of which they were unaware regarding entitlement to the proceeds of the ultimate sale to the developer or a third party. That does not, however, of itself render what was said a misrepresentation. In my opinion there is no misrepresentation inherent in describing the first defender as the owner or landowner in respect of the Headon land; it was the holder of title to the land, and no-one else answered to that description. Specifically, it does not amount to a representation that the first defender was “beneficial owner” in the sense in which that term is used by the pursuers.
[22] Moreover, as the defenders pointed out, there is nothing in the joint venture agreement to support the contention that entitlement to enjoyment of ultimate profit was mutually regarded as material when the agreement was entered into. Such indications as do exist are to the contrary. The agreement was entered into on certain “Assumptions”, including that the joint venturers had “title to the Development Land” and that such title was good and marketable. Nothing is said about beneficial interest: that is perhaps unsurprising, not least because the first pursuers hold title in a representative capacity and the second pursuers in a fiduciary capacity. Clause 4.4.4 expressly envisages that one joint venturer may have rights over land belonging to another. In Ross River Ltd v Cambridge City Football Club Ltd [2007] EWHC 2115 (Ch), Briggs J observed at paragraph 197:
“In relationships falling short of partnership, but having in them elements of joint enterprise or joint venture, there is no hard and fast rule as to the existence or otherwise either of a duty of good faith, a fiduciary duty or a duty of disclosure. Each case will turn on its own facts, but if the relationship is regulated by a contract, then the terms of that contract will be of primary importance, and wider duties will not lightly be implied, in particular in commercial contracts negotiated at arms' length between parties with comparable bargaining power, and all the more so where the contract in question sets out in detail the extent, for example, of a party's disclosure obligations…”
Senior counsel for the pursuers objected to the application of this analysis to a situation where, as in the present case, the contract creating the relationship is itself the subject of challenge as having been impetrated by misrepresentation. I agree that there is a distinction to be made, but it nevertheless seems to me to be relevant to examine the terms of the contract under challenge to see whether it lends support to an assertion made by a party that a statement said to have induced it was or might have been a material misrepresentation. In my view, no such support is afforded by the terms of the joint venture agreement.
[23] As the pursuers have failed relevantly to aver any misrepresentation, it is unnecessary to address in any detail the question whether the pleadings are sufficient to lay a foundation for a case based upon fraudulent or, alternatively, negligent misrepresentation. I shall, however, briefly provide my view. The inference of fraud (or negligence) is said to arise from the four matters that I have set out at paragraph 9 above. In my opinion these do not come close to what would have been necessary to found a case of fraud or even negligence. The first two merely beg the question of whether any obligation was incumbent upon any of the defenders to disclose the nature of the first defender’s interest in the Headon land. The third fails to acknowledge that the existence, if not the content, of the Headon/Cuthill agreement was a matter of public record, and it is not averred that there has ever been a misrepresentation by any person regarding its content. The fourth is wholly unspecific as to date or context, except that it is presumably said to have occurred many years after the joint venture agreement, and is quite inadequate as the basis of an allegation of either fraudulent or negligent conduct. In any event it proceeds upon an assumption that Mr Headon was under an obligation of disclosure, which I have held not to be the case. I would not, therefore, have allowed the pursuers’ case based upon either fraudulent or negligent misrepresentation to proceed to proof, and there would accordingly have been no relevant basis for the claim for damages to which the pursuers expressly reserve a right in their pleadings.
Disposal
[24] I shall sustain the first plea in law for the first, third and fourth defenders and the first plea in law for the second defender, being the defenders’ respective pleas to relevancy, and dismiss the action. Questions of expenses are reserved.