ELLEN SUSAN KELLY or GALLACHER and OTHERS v. MORRISON & MacDONALD (PAISLEY) LIMITED
| OUTER HOUSE, COURT OF SESSION |
| A2936/00 | OPINION OF T. G. COUTTS, Q.C. SITTING AS A TEMPORARY JUDGE in the cause ELLEN SUSAN KELLY or GALLACHER and OTHERS Pursuers; against MORRISON & MacDONALD (PAISLEY) LIMITED Defenders: ________________ |
Pursuers: Marshall, Solicitor-Advocate: Thompsons
Defenders: Davidson, Allan McDougall & Co., S.S.C.
For the Insurers: Mr Summers, Advocate; Biggart Baillie
30 May 2003
[1]This was an action in which the pursuer and others sued for damages arising from the death of Mr Gallacher from mesothelioma. The action was signetted on 20 October 2000. There had been letters from the pursuers' solicitors, who then acted for Mr Gallacher to the defenders in reply to which they disclosed that their insurance brokers were Messrs Willis Corroon of Glasgow. On 4 July the Iron Trades Insurance wrote to the pursuers' solicitors asking for their interest to be noted and requesting further details.
[2]After the action was raised Messrs Biggart Baillie wrote to the pursuers' solicitors requesting them to note their interest on behalf of the defenders and to be advised when the summons was to lodged for calling.
[3]The action proceeded but as is well known a scheme administrator required to be appointed to Chester Street Insurance Holdings Limited formerly Iron Trades Holdings Limited. There was a scheme which was approved by the High Court and a letter dated 29 March 2001 was sent out by Price Waterhouse Coopers to all scheme creditors. The arrangements were fairly complicated but involved certain claims not being met by insurers in any respect and reverting to the original employer or defender.
[4]The counsel who appeared on behalf of the insurers stated that Messrs Willis Corroon would have received a copy of the said letter of 29 March 2001.
[5]Negotiations took place between Biggart Baillie and the pursuers' solicitors as a result of which terms of settlement were agreed just prior to the diet of proof. As explained to the court the actual defenders were only unaware of the terms of settlement were not asked for and did not give any authority therefor. The defenders personally, due to the failure of the insurers, were liable to meet the payment of the pursuers' damages.
[6]The defenders declined to make payment on the ground that they had never agreed to or even been consulted about any settlement and that they had given no authority therefor.
[7]However that may be, it certainly would appear that in a question between the defenders and the insurers' solicitors and/or the defenders' insurance brokers issues might arise. It is sufficient for the purposes of this opinion that the defenders were asked to make payment out of their own pocket of the agreed sum and declined to do so on the basis that they had not authorised it.
[8]No joint minute was lodged and no court decree had passed for the sums in the agreement.
[9]The pursuers' solicitors then enrolled a motion seeking summary decree in terms of Rule of Court 21.2(1) together with certification of witnesses and narrating "summary decree as sought on the basis of settlement terms agreed between the pursuers' agents and the defenders' agents as detailed in their facsimile dated 5 November 2002. That facsimile appears to be sent by Biggart Baillie to Thompsons and acceptance was presumably to be implied.
[10]The Rule of Court applicable in relation to seeking summary decree is:
"21.2.-(1) Subject to paragraphs (2) to (5) of this rule a pursuer may, at any time after a defender has lodged defences while the action before the court, apply by motion for summary decree against that defender on the ground that there is no defence to the action, or a part of it, disclosed in the defences."
[11]I refused that motion on the basis that it did not apply to the situation of attempting to enforce an out of court settlement not being a decree in a joint minute. The basis of applying for summary decree is that there is no defence to the action disclosed on the defences. Matters had proceeded far beyond that stage and accordingly I held that such an application was inappropriate and refused the motion. The case was put out By Order with a view to determining whether the case could settle but at the By Order roll the pursuers sought leave to reclaim. The basis of that application was that there was an important issue in determining the scope of an application for summary decree. Since that might be the case I granted leave. I had pointed out that the pursuer could either raise an action to enforce a contract for settlement if that was the factual situation or they could simply continue with a further diet of proof to obtain a decree of the Court.