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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Khosrowpour v. Murray Beith & Murray & Ors [2007] ScotCS CSOH_132 (20 July 2007) URL: https://www.bailii.org/scot/cases/ScotCS/2007/CSOH_132.html Cite as: [2007] CSOH 132, [2007] ScotCS CSOH_132 |
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OUTER HOUSE, COURT OF SESSION [2007] CSOH 132 |
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A29/06 |
OPINION OF LORD GLENNIE in the cause HAMID KHOSROWPOUR Pursuer; against MURRAY BEITH MURRAY, WS, F ADAM J MORE, RICHARD F FILLEUL, W ALEXANDER FINALYSON, W RUTHVEN GEMMELL, RODGER R HARVEY-JAMIESON, JOHN K SCOTT MONCREIFF, NIGEL J POLLOCK, HUGH P YOUNGER, MARK E STEWART, CAROLE HOPE, ANDREW J STEPHEN, DAVID W CALDER, NEIL M ADDIS and AUSTIN FLYNN Defenders: ннннннннннннннннн________________ |
Act:
Thomson; Thorley Stephenson
Alt: Jones, Solicitor Advocate; Brechin Tindal Oatts
"in event that [MK] is unable to hold his tenancy of the aforementioned premises, within the period of the Agreement with [the pursuer], therefore in consequence [MK} or his estate will repay the whole of the License Fee back to [the pursuer]." [emphasis added]
The expression "unable to hold his tenancy" is at the centre of the present dispute.
[4] In September 1999 the pursuer bought the leased premises and became MK's landlord.
[7] For
the defenders, Mr Jones made his submissions by reference to a detailed Note
of Submissions. He invited me to uphold
his first plea-in-law and dismiss the action.
He submitted that there was a fundamental confusion in the pursuer's
averments leading up to his averments of loss.
In Article 4 of Condescendence, the pursuer shifts between saying,
on the one hand, that had the notice of irritancy been good it would
automatically have brought the license agreement to an end; and, on the other,
that the service of a valid irritancy notice would have enabled the pursuer to
take action to terminate the lease and therefore bring the license agreement to
an end. Those two ways of putting the
case were not mutually supportive and the defenders were entitled to fair
notice of what the pursuer's case was.
In the first sentence of Article 13 the pursuer claims that, as a result
of the defenders' failure to terminate the lease, the license agreement
remained in force. He follows this by
averring in the next sentence that "had the Defenders validly irritated the
lease ... the license agreement would thereby have been terminated". However, in Articles 14 and 15 the pursuer
says that no solicitor of ordinary competence would have failed to realise
that, if he served a valid notice, "the Pursuer would be able to terminate the
license agreement". The pursuer's case
was wholly unclear. Service of a valid
irritancy notice, without that being followed up by an action of removing, did
not mean that MK was "unable to hold his tenancy" on a proper construction of
that phrase in the context of the license agreement as a whole. There were no averments of fact supporting
any case that the pursuer took or would have taken steps to remove MK after
service of a valid notice. Even if,
contrary to that submission, service of a valid irritancy notice without more
entitled the pursuer to repayment of the Licence Fee, on a proper construction
of Clause 10 it would not result in termination of the license agreement
or of the obligation to make the weekly payment. The sum claimed by the pursuer in the first
Conclusion (г86,000) was made up in part of the Licence Fee which the pursuer
says that he would have been able to recover from MK had a valid notice been
served and in part of weekly payments that the pursuer had to carry on making
under the license agreement until a resolution of the dispute with MK was
agreed some years later. The averments
in support of that Conclusion should not be admitted to probation. Even if the pursuer's case was simply put on
the basis of loss of a chance, there were no averments tying such a claim in
with sum claimed in the first Conclusion.
As to the correct approach to this question, Mr Jones referred me
to the Opinion of the Extra Division in Kyle
v P & J Stormonth Darling 1993 SC 57 at 67E-G and 68C-F.