OUTER HOUSE, COURT OF SESSION [2012] CSOH 14
A773/10	OPINION OF LORD BANNATYNE in the cause MARK SMITH Pursuer; against SABRE INSURANCE CO LTD Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuer: A McKay; Thompsons

Defender: MacNaughton; HBM Sayers

24 January 2012

Introduction

[1] This matter came before me for a procedure roll discussion in terms of the defenders' first plea-in-law. That plea-in-law is in the following terms:

"In respect of the liability of the defenders to make reparation to the pursuer for his losses arising from the said accident has already been determined by a competent court in an action between the parties, the subject matter of the present action is res judicata and the defenders are entitled to be assoilzied".

In the present action the pursuer seeks reparation for loss and damage arising from the defenders' insured's negligence while driving his vehicle on 24 March 2009 when he collided with the pursuer's vehicle on the A811 Drymen Road (see: Statements 2 and 3) of the Closed Record. The fault and negligence of the defenders' insured is admitted at Answer 3.

[2] The pursuer in Statement 4 seeks compensation for the following losses:

"1. Hire Charges - £26,550.98

2. CDW - £1,337.50

3. Satellite navigation charge - £802.50

4. Delivery and collection - £100

5. VAT - £4,318.65

6. Inconvenience - £100".

It was not disputed between parties that the pursuer had already raised proceedings in Stirling Sheriff Court against the defenders and their insured seeking compensation arising out of the same road traffic accident. The pursuer in that action obtained decree in terms of 7/2 of process on 4 May 2010 for the sum of £4,550 together with expenses on the summary cause scale. Said decree was pronounced in terms of a Minute of Acceptance and Tender. It was arising out of the foregoing circumstances that the preliminary plea of res judicata was taken.

Submissions for the defenders

[3] Counsel began his submissions by setting out the elements which are necessary for a successful plea of res judicata and these are as set out by Sheriff Macphail (later Lord Macphail) in McPhee v Heatherwick 1977 SLT (Sh.Crt) 46 and are as follows:

1. The prior determination was made by a competent tribunal.

2. The prior determination was pronounced in foro contestioso

3. The subject matter of the two actions must be the same.

4. The media concludendi in the two actions were the same.

5. The parties to the second action must be identical with or representative of the parties to the first action.

This decision was later approved in the Court of Session by Lord Macfadyen in Irving v Hiddleston 1998 SC 759 at 770F-H.

[4] Counsel for the pursuer did not dispute that the five factors set out by Sheriff Macphail were the factors which require to exist in order to found a successful plea of res judicata although it was his position that the said case was wrongly decided.

[5] Counsel then turned to look at each of these elements in turn.

[6] As regards the first necessary element of an antecedent judicial decree of a competent tribunal it was conceded on behalf of the pursuer that the decree of the Sheriff Court was such a decree.

[7] Equally it was conceded on behalf of the pursuer that the second essential had been satisfied, namely: that the decree in Stirling Sheriff Court had been pronounced in foro contestioso.

[8] The dispute therefore related to elements 3, 4 and 5.

[9] Counsel dealt with elements 3 and 4, namely: were the two actions relative to the same subject matter and were proceedings on the same ground jointly.

[10] It was counsel's submission that both the subject matter and the grounds of action were the same in each of the two sets of proceedings.

[11] In development of that submission he turned to examine in detail the decision in McPhee v Heatherwick.

[12] The facts of the said case were as follows. On 15 November 1975 the pursuer was riding his motorcycle along a major road in Glasgow. As he approached a junction with a minor road, the defender drove his vehicle from the minor road onto the major road and struck the motorcycle.

[13] In Glasgow Sheriff Court a small debt action was raised which narrated the facts of the accident as above stated and continued: "It is averred that the defender was negligent in the manner in which he drove his vehicle. It is further averred that the pursuer sustained loss in the sum of £50. The pursuer has paid excess on his insurance policy of £35. It is further averred that the pursuer has sustained loss of crash helmet valued at £15".

[14] The Court granted decree in the pursuer's favour, finding the defender liable to him in the sum of £50 expenses.

[15] Meanwhile the pursuer had raised another action against the defender. It was a summary action for payment of £144.12. In the Initial Writ in this action the pursuer once again averred the facts of the accident and that it was caused by the negligence of the defender. His averments continued: "As a result of said accident the pursuer's motorcycle required repair at a cost of £144.12 which is the sum sued for".

[16] Having considered the first two elements necessary to establish res judicata Sheriff Macphail went on to consider whether the two actions related to the same subject matter and proceeded on the same grounds and observed at pages 47 and 48 as follows:

"I now have to consider whether the two actions relate to the same subject-matter and proceed on the same grounds. Here, the court must look at the essence and reality of the matter rather than the technical form, and simply inquire: What was litigated and what was decided? (See Grahame v Secretary of State for Scotland, 1951 SLT 312, 1951 SC 368, Lord President Cooper at p.321). In my opinion, what was litigated in the small debt action was the question whether the pursuer was entitled to reparation from the defender for patrimonial loss sustained through the alleged fault of the defender in causing the accident on 15 November 1975. What was decided was that the pursuer's contentions were correct and that the defender should pay the pursuer the sum sued for plus expenses. In the present action the pursuer raises exactly the same question and invites the court to make exactly the same decision. It makes no difference that in the small debt action the pursuer sued for his 'excess' and the value of his crash helmet, while in the present action he sues for the cost of the repair of his motorcycle. In each case he sues for pecuniary loss caused by the same infringement of his patrimonial interests; and the rule is that the damages which arise from one and the same cause of action must all be assessed and recovered in one action (Stevenson v Pontifex and Wood (1887) 15 R.125, Lord President Inglis, at p.129; and see Professor D M Walker's Civil Remedies at pp. 405-406, 529-530 and 878). The rule may be thought to be particularly apt in a case such as this, where the damages claimed in the second action could have been claimed at the time when the first action was raised. To put it in another way: the subject-matter of the action in the small debt court was the right of the pursuer to obtain reparation from the defender for patrimonial loss sustained as a result of the accident. So also in the present action, and the grounds of action are the same in both cases because in each the ground on which the pursuer has founded his claim is the fault of the defender in driving his vehicle in a negligent manner and so causing the accident."

Counsel's position was that Sheriff Macphail in the foregoing passage had correctly analysed the law. He submitted that the case before me was on all fours with McPhee v Heatherwick. In the instant case the subject matter in both actions is the right of the pursuer to obtain reparation from the defenders for loss incurred arising out of the same accident and the ground of action is the same in both actions, namely: the negligence of the defenders' insured.

[17] Counsel then referred to the Opinion of Lord Macfadyen in Irving v Hiddleston at 770 where he observed:

"In my opinion counsel for the pursuer's insistence on referring to each item of loss or head of damages as a separate claim is also likely to mislead. In my opinion the cases relied on in support of that approach were wrongly decided, and do not support the proposition that an injured person has a separate claim for each item of loss. Those cases (McSheehy v MacMillan and McHarg Houston & McFarlane v Newman) in my opinion fell into the error of taking Lord Anderson's dictum in Steven v Broady Norman & Co Ltd out of context and of failing to give proper weight to the rule in Stevenson v Pontifex & Wood). In my opinion, the reasoning of Sheriff Macphail in McPhee v Heatherwick (at p 48) is to be preferred. In my opinion the law regards a person injured by a wrongful act as having one single claim for damages in respect of the loss, injury and damage suffered (see, for example Dunlop v McGowans, per Lord Fraser of Tullybelton at p 77, rejecting the possibility that each item of pecuniary loss being treated as a separate loss for the purpose of prescription). It does not, of course, follow that it is impossible for the injured person and the wrongdoer, before litigation, to reach agreement on the settlement of certain item of loss, and to implement that partial settlement, without discharging the whole claim. While the effect of taking an action of damages to decree, and obtaining satisfaction of that decree, is to discharge the whole claim".

It was counsel's position that the observations of Lord Macfadyen clearly supported the position which he was advancing. In particular he contended that in light of this passage the cases of Steven v Broady Norman & Co Ltd and McSheehy v MacMillan were of no assistance in advancing the pursuer's case.

[18] Should there be any doubt as to the meaning of medium concludendi in this context he referred me to Trayner's Latin Maxims 4^th Edition where it is defined as meaning:

"The ground on which the conclusions of a summons are based: the ground of action".

Counsel lastly turned to the final element, namely: were the two actions between the same parties. He submitted that the parties were the same in both actions.

[19] He accepted that in the present action the defenders were Sabre Insurance Company Limited on their own and that in the previous action the defenders had been Sabre Insurance Company Limited and Robert Holmes, their insured.

[20] However, it was his submission that I should look at the reality of the way that these litigations were run. In both actions Sabre was sued as the insurers of Robert Holmes. In each of the actions it was the same driver, namely Robert Holmes and the same insurers namely Sabre.

[21] In terms of the previous action's Record the agents were HBM Sayers and in the present action they were the same agents. Each case had been run by the agents for the insurers. Both actions were raised against the insurers in terms of the European Communities (Rights against Insurers) Regulations 2002. The fact that in one action the defenders' driver was convened, made no difference he submitted to the reality of the situation.

[22] In support of his submissions he referred me to Balfour v Archibald Baird & Sons Ltd 1959 SLT 273. In this case it was observed by the Lord Justice Clerk at page 277:

"If a pursuer elects to sue one of two or more joint wrongdoers and puts his whole claim to the arbitriment of the chosen court he cannot be allowed to have another try against the other wrongdoers in the hope that a different judge will give him more. If he has invited a competent court to give him full satisfaction for the loss sustained by him and if he is awarded damages on that footing that is an end of it".

The Lord Justice Clerk went on to say at 277:

"This passage was accepted as correctly stating the law in the comparatively recent case of Steven v Broady Norman & Co. In my view the pursuer in his original action sought satisfaction in a competent Court and having acquiesced in the judgment of that Court must be regarded as having obtained satisfaction. His damage has therefore in law ceased to exist and the obligation on the present defenders is extinguished. I should add that the pursuer's argument was put forward as a general point of principle and not as depending on any peculiarity attaching to the disease of pneumoconiosis".

Counsel took from this case that it was nothing to the point that the names in the instance, so far as the defenders are concerned, were different. The pursuer had had just satisfaction from Stirling Sheriff Court.

[23] Lastly, counsel addressed the issue of what would be the appropriate decree to pronounce if I were with him in his argument. He submitted that for the reasons set out by Sheriff Macphail in the last paragraph of his judgment in McPhee v Heatherwick I should pronounce decree of absolvitor rather than decree of dismissal.

Reply on behalf of the pursuer

[24] Counsel for the pursuer opened his submissions by contending that although he accepted Sheriff Macphail had set out correctly the factors essential to a successful plea of res judicata in the case of McPhee v Heatherwick, it was his position that McPhee v Heatherwick was wrongly decided and that in particular in considering whether there was the same subject matter and the same media concludendi in the two actions, Sheriff Macphail had erred in law. It was his position that the approach to these issues of Sheriff Lockhart in McSheehy v McMillan 1993 SLT (Sh.Ct) 10 between pages 12 and 14 should be preferred. In particular counsel relied on the following passage in Sheriff Lockhart's decision at page 12:

"I have come to the conclusion that the plea of res judicata should not be upheld in this case. I accept that the facts of this case are on all fours with the facts in the case of McPhee v Heatherwick, but I do not conclude that the subject matter of the present litigation and subject matter of the earlier small claim decided on 19 September 1989 are the same. The subject matter in the earlier small claim was not the pursuer's pecuniary loss. It was his pecuniary loss insofar as it was uninsured. The statement of claim in the original small claim makes it quite clear that the pursuer sued for his own uninsured pecuniary losses and did not seek to include in the action any outlay for which he may have been reimbursed by his insurance company in respect of the damage to his vehicle. The pursuer had no control over the recovery or otherwise of that outlay. That was a matter for his insurance company who had settled the repair account, under deduction of his excess, to discharge his claim under his insurance policy. If the pursuer was seeking in this action to add additional personal outlays to those which he had already recovered, I consider it could be said that the subject matter of the two litigations was the same and the plea res judicata would be upheld. The defender knew when the first action was raised that he was presented with a claim from the pursuer for his own pecuniary losses as a result of the accident for which he held the defender responsible. That summons made it clear that the insurance company's outlay was not part of that action."

Counsel took from this passage and the entire reasoning of Sheriff Lockhart that where in the instant case the pursuer had in the first action claimed for certain personal losses and now sought in the second action to recover losses relative to car hire charges etc arising from a credit hire agreement which he had entered into with Accident Exchange Limited then the subject matter and media concludendi were not the same and accordingly the plea of res judicata was not well founded.

[25] He conceded that this submission would require me not only to hold that McPhee v Heatherwick was wrongly decided but would also require me to hold that the analysis of Lord Macfadyen in Irving v Hiddleston earlier quoted was also incorrect.

[26] Counsel then discussed Forrest v Hendry 2000 SC 110, a decision of Lord Macfadyen which he had given after that in Irving. In that case the facts were:

"The pursuer and the defender had been in practice together as solicitors until the dissolution of the firm. The pursuer, on an averment that he was suing as 'the continuing partner' of the dissolved firm, raised an action concluding for payment of sums representing the goodwill of the dissolved firm in respect of certain clients taken over by the defender and fees allegedly due to the dissolved firm from clients of the firm who, by agreement between the parties at the date of dissolution, the defender had taken with him on the understanding that he would collect the pre-dissolution fees from the clients as they became due. The action was the second one arising out of the dissolution of the firm. The previous action had been at the defender's instance and had sought payment of a sum representing his share of the partnership. Neither party in that action had been designed as suing or being sued in a special capacity. The principal dispute in the previous action had been concerned with the method to be used to value the defender's share of the partnership. In the pursuer's defences in the previous action the pursuer had specifically reserved his right to bring separate proceedings in respect of fees recovered from certain former clients of the dissolved firm. The previous action was settled extra-judicially. The pursuer's minute of tender had been accompanied by a letter which reserved his entitlement to seek payment of certain sums including goodwill in respect of former clients of the dissolved firm".

It was held by Lord Macfadyen as follows:

"....that the goodwill aspect of the pursuer's claim had not been put in issue in the previous action, a conclusion confirmed by both the terms of the reservation in the pleadings in the previous action and the letter accompanying the minute of tender".

Counsel submitted that those observations of Lord Macfadyen were of some assistance in advancing his position..

[27] Counsel submitted on the basis of these observations that in coming to a conclusion as to what had been litigated upon in the previous action I could have regard to pre-litigation correspondence between Messrs Thompsons, Solicitors (the solicitors for the pursuer in the instant action) and the defenders contained in 6/3 to 6/9 of process.

[28] Counsel then turned to examine Primary Healthcare Centres (Broadford) Ltd v Ravangave 2009 SLT 673. In this case Lord Hodge in considering the rule regarding res judicata observed as follows at paragraph 35:

"These examples and cases support the test of what was litigated and what was decided. That test ....is useful to avoid detailed and occasionally fruitless analysis of the concepts of subject matter and media concludendi. In applying that test in cases which are carefully pleaded, the legal grounds of action which are pleaded will usually determine whether the plea of res judicata succeeds. But the court is not tied to the parties' precise formulations in their pleadings; it may look at the substance of the matters pleaded, especially if the pleadings fail to focus on, or if they mask, the issues which were in dispute and determined in the earlier action".

[29] Under reference to paragraph 34 in the said decision, counsel submitted that the said observations of Lord Hodge flowed from the decision of Lord Macfadyen in Forrest v Hendry where Lord Macfadyen observed that what should be looked at is the substance of the dispute in the previous action.

[30] Counsel took from the foregoing that what had to be looked at was the essence of the matter in relation to what had been litigated upon. He submitted that if the court were seeking to establish the substance of the dispute then it was not bound merely to look at the pleadings but could have regard to wider considerations including pre-litigation correspondence such as that contained in 6/3 to 6/9 of process.

[31] It was his submission that when the matter was approached in that way it was clear that what was litigated upon in the previous action was the personal injuries which the pursuer sustained and the losses arising from them and what was litigated upon in the second action was the loss and damage which arose from the damage to his vehicle.

[32] He submitted that I was entitled to and should look behind the decree which had been pronounced in the court in Stirling in the previous action and look beyond the pleadings and have regard to the pleadings as seen in the light of the said correspondence in order to identify what was the essence of the previous action.

[33] Lastly counsel referred to Short's Trustee v Chung 1999 SC 471 and in particular the following passage in the Opinion of Lord Prosser at 476H-477B:

"In Grahame v Secretary of State for Scotland, Lord President Cooper at page 387 describes the plea of res judicata as based upon considerations of public policy, equity and common sense, 'which will not tolerate that the same issue should be litigated repeatedly between the same parties on substantially the same basis'. After noting that he uses the word 'substantially' advisedly, and referring to Glasgow & South Western Railway Co v Boyd & Forrest for the proposition that the courts are 'to look at the essence and reality of the matter rather than the technical form, and simply to enquire - What was litigated and what was decided?"

[34] He submitted that the foregoing passage fitted in with what had been said by Lord Hodge and Lord Macfadyen and supported his submission that I should look to identify the essence and substance of what had been litigated upon in the first action.

[35] Having identified the legal framework counsel then looked at the facts of the instant case and sought to apply the legal framework thereto.

[36] Looking at the pleadings in the previous action he submitted that it had been raised under the personal injuries rules applicable to the Sheriff Court. Thus the pleadings were not as full, detailed and precise as they would have been historically. The rules in the Sheriff Court were supposed to inspire brevity. The defenders' responses were equally brief.

[37] It was his submission that it was very important to note from Statement 4 that the pursuer averred as follows:

"As a result of the collision the pursuer sustained the injuries hereinafter condescended upon".

[38] From this he submitted that the pursuer had only sought compensation for the personal injuries which he had sustained and not for the loss and damage which he had sustained.

[39] He described Statement 5 as somewhat ambiguous as it began with the following phrase:

"The pursuer has the following claims as a result of the accident".

[40] However when Statement 5 was looked at in detail it became clear that the only heads of damages which it was sought to recover were solatium; loss of earnings and in terms of section 8 of the Administration of Justice (Scotland) Act 1982.

[41] He then turned to look at the pleadings in the action before me and pointed to the fact that there was no reference to personal injury or claims relating to personal injury. He then went through the correspondence 6/3 to 6/9 and his broad submission in relation to the terms of that correspondence was that it made it clear to the defenders that the only damages which were being sought in the previous action were for personal injury.

[42] No argument was advanced in response to the points made by counsel for the defenders to the effect that condition 5 was satisfied.

[43] On the basis of the foregoing it was his submission that I should repel the defenders' preliminary plea-in-law and allow a proof limited to quantum.

Discussion

[44] The plea of res judicata is based on considerations of public policy and seeks to prevent the same parties from litigating the same issue repeatedly on substantially the same grounds (see: Grahame v Secretary of State for Scotland per the Lord President at 1951 SC 387).

[45] It was accepted by both parties that the five conditions which have to be satisfied for the plea to succeed are as I have set out earlier in this opinion.

[46] In this case it is only the third and fourth conditions which are in real dispute.

[47] Lord Hodge in Primary Healthcare between paragraphs 21 and 35 fully analysed the authorities as to how the court should approach the question of whether the two actions relate to the same subject matter and proceed on the basis of the same media concludendi.

[48] It is clear from this careful analysis that when approaching this issue the test to be applied is: what was litigated and what was decided?

[49] Such an approach as Lord Macfadyen observed in Forrest v Hendry at 120D requires the court to have regard to:

"the true substance of the issues which have been in dispute."

[50] As observed by Lord Prosser in Short's Trustee v Chung the foregoing approach is useful to avoid fruitless analysis of the concepts of subject matter and media concludendi.

[51] The question therefore before me comes to be this: whether in substance the issues which the pursuer seeks to have resolved in this action have already been litigated in the previous action and determined by the decree pronounced in terms of the tender and acceptance?

[52] In answering that question the first issue is whether regard should be had to the pre litigation correspondence to which I was referred by counsel for the pursuer.

I would observe first that when looking at the matter from first principles that the core of a plea of res judicata is a consideration of a previous determination in order to see whether the five conditions identified by Lord Macphail are satisfied.

[53] Determinations in civil courts in Scotland are based upon the pleadings which are before the court. Determinations of the court are not based on matters outwith the pleadings. A court can only come to a decision on the basis of the material before it as set out in the pleadings. Evidence can only be led in support of the pleadings.

[54] In my opinion, it flows from the above, that what the court must look at in deciding whether a plea of res judicata is made out is the substantive pleadings in the previous action. It is to the pleadings in the previous action that the court must direct itself when asking itself the question what was litigated and what was decided.

[55] I find support for my view in the observations of Lord Kinnear in Edinburgh and District Water Trustees v Clippens Oil Company Limited 1899 1F 899 at 909 where he says that the validity of the plea of res judicata:

"must necessarily depend upon the pleadings and decision in the previous action, and not upon any rights or equities which may have arisen antecedent to the pleadings or from any extra-judicial communications between the parties. The question always is, what was litigated and what was decided."

[56] Thus I believe in looking solely at the pleadings I am not departing from the proper test, namely: considering what was litigated and what was decided.

[57] I conclude that the rule of looking at the substance of the matter was not intended to allow an examination of pre-litigation correspondence in order to seek to identify the issue litigated upon in the previous action. Rather it was intended to allow the court to examine the substance of the disputed issue as disclosed in the pleadings.

[58] I note that Lord Hodge, when considering the application of the rule in Primary Healthcare Centres at page 679, paragraph 35, says the following:

"In applying that test in cases which are carefully pleaded, the legal grounds of action which are pleaded will usually determine whether the plea of res judicata succeeds. But the court is not tied to the parties' precise formulations in their pleadings; it may look at the substance of the matters pleaded, especially if the pleadings fail to focus on, or if they mask, the issues which were in dispute and determined in the earlier action."

[59] In my view the foregoing passage clearly supports the view which I have reached that it is to the pleadings that one must have regard.

[60] In advancing his contention that the correspondence could be had regard to in order to identify the issues which were litigated upon in the earlier action the pursuer's counsel particularly relied on the decision of Lord Macfadyen in Forrest v Hendry. In my view the opinion of Lord Macfadyen does not support the contention advanced by counsel. I accept that Lord Macfadyen in that case held:

"4. That the goodwill aspect of the pursuer's claim had not been put in issue in the previous action, a conclusion confirmed by both the terms of the reservation in the pleadings in the previous action and the letter accompanying the minute of tender."

[61] It was to this particular part of the decision of Lord Macfadyen that counsel referred and which he submitted supported his position that regard could be had to the pre-litigation correspondence.

[62] However in my opinion Lord Macfadyen's decision has to be looked at as a whole and in the context in which it was made.

[63] It has to be noted that:

1. The specific reservation which was referred to in the letter accompanying the minute of tender was contained in the pleadings in the earlier action.

2. Lord Macfadyen based his conclusion that the said claim was not included in the earlier action:

"on the terms of the substantive parts of the pleadings." (see: page 123H).

3. He observed that the letter which had accompanied the minute of tender could only be had regard to for a limited purpose, namely:

"Where a reading of the pleadings leads to the conclusion that a particular counter-contention has not been put in issue, it is in my view legitimate to have regard to correspondence which reinforces or confirms the soundness of that reading." (see: page 123H).

4. The correspondence to which Lord Macfadyen had regard to accompanied the acceptance of the tender and was thus before the court and was not in the nature of pre-litigation correspondence.

[64] It appears to me having regard to the above factors that on a proper understanding of Lord Macfadyen's observations they do not depart from what was said by Lord Kinnear in Clippens Oil Company. They amount to no more than saying this: a document presented to the court with the acceptance of a tender and which repeated a specific reservation contained in the pleadings could be had regard to in order to confirm the view already formed on the basis of the pleadings.

[65] I do not believe that Lord Macfadyen was suggesting that in order to arrive at a conclusion as to what was litigated upon and what was decided a wide ranging inspection of pre-litigation correspondence could be entered into. I do not believe that he was saying that pre-litigation correspondence could be used as a tool for construing what was litigated upon. In my view any such correspondence is superseded by the raising of the action. For the foregoing reasons I have not had regard to the correspondence 6/3 to 6/9 of process when considering the issues before me.

[66] Turning to the pleadings I entirely agree with counsel for the defenders that the case before me, when the pleadings are looked at, is on all fours with the facts in McPhee v Heatherwick, namely: the facts of the accident as pled in the previous action and the facts of the action as pled before this court are the same and the averments as to negligence are the same in the two actions. This is exactly the same situation as there was in McPhee v Heatherwick.

[67] In the previous action statement 5 commences: "The pursuer has the following claims as a result of the accident". And thereafter there are listed three claims: solatium; loss of earnings and section 8 of the Administration of Justice Act. In the action before me at statement 4 the pursuer sets out his claim which is:

"As a result of the collision the pursuer suffered loss and damage. His vehicle sustained extensive damage. His vehicle was written off and he was accordingly denied the use and amenity of the vehicle until he was in funds in respect of the preaccident value of his vehicle. The pursuer entered into a Credit Hire Agreement with Accident Exchange Limited, Alpha 1, Canton Lane, Hams Hall, Coleshill, West Midlands, B46 1GA. During the period of repair they provided the pursuer with a replacement vehicle. The pursuer was able to achieve an excess of nil in his agreement with Accident Exchange by adding waivers and additional charges to the basic hire rate offered by Accident Exchange. He is further contractually obliged to meet Accident Exchange's hire costs for the replacement vehicle, including credit hire rates, waivers charges and interest on all sums until payment. But for the accident and the negligence of the defender, the pursuer would not have incurred any of these costs or losses. In all of the circumstances the sum sued for is a reasonable estimate of the pursuer's loss and damage.

For the avoidance of doubt the pursuer seeks compensation for the following specific losses, charges and expenses:

1. Hire charges - £26,550.98

2. CDW - £1,337.50

3. Satellite Navigation charge - £802.50

4. Delivery and collection - £100

5. VAT - £4,318.65

6. Inconvenience - £100".

[68] In McPhee v Heatherwick the situation was the same. Certain items of loss were claimed in the first action and then the second action was raised seeking certain additional items of claim. In these circumstances Sheriff Macphail upheld the plea of res judicata. His reasoning for so doing was specifically upheld in Irving v Hiddleston by Lord Macfadyen.

[69] Counsel for the pursuer sought to persuade me that I should not follow the decision in McPhee v Heatherwick and that I should also reject the decision of Lord Macfadyen in Irving v Hiddleston.

[70] In support of this submission he referred me to the decision of Sheriff Lockhart in McSheehy v MacMillan.

[71] I, without difficulty, prefer the reasoning of Sheriff Macphail which I believe correctly analyses the law. In my view the reasoning of Sheriff Lockhart runs counter to a series of authorities: Stevenson v Pontifex & Wood 1887 15R 125; Dunlop v McGowans 1980 SC (HL) 73 and Esso Petroleum Company Limited v Hall Russell & Co Limited 1995 SCLR 36 which require a pursuer who is claiming damages arising from a single act which is a delict or breach of contract to advance all his heads of claim in the same action as in such circumstances there is only one cause of action.

[72] Therefore looking to the substance of the matter and asking what was litigated and what was decided: the subject matter of the previous action was the right of the pursuer to obtain reparation from the defenders and the media concludendi (ground of action) was the negligence of the defenders. The subject matter and the media concludendi in the action before me are exactly the same. I accordingly hold the third and fourth conditions satisfied.

[73] As regards the fifth condition for the reasons advanced by counsel for the defenders I hold this satisfied.

Decision

[74] For the foregoing reasons I uphold the plea of res judicata. I grant decree of absolvitor. I am persuaded by what was said by Lord Macphail in McPhee v Heatherwick that decree of absolvitor is the appropriate decree where a plea of res judicata is upheld. I reserve all issues of expenses.