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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Marshall (t/a Marshall Associates) v. Slinn [2003] ScotCS 74 (27 February 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/74.html Cite as: [2003] ScotCS 74

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Marshall (t/a Marshall Associates) v. Slinn [2003] ScotCS 74 (27 February 2003)

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Philip Lord Kingarth	XA81/02 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in APPEAL in the case ALAN MARSHALL (t/a MARSHALL ASSOCIATES) Pursuer and Respondent; against COLIN SLINN Defender and Appellant: _______

Act: McSporran; Aitken & Nairn W.S.,(for Pursuer and Respondent)

Alt: Party; (for Defender and Appellant)

27 February 2003

 

Introduction and procedure to date

1. The respondent is an architect. He sues for payment for professional services rendered by him to the appellant. The appellant accepts that the services were rendered but he denies that he has any liability to pay for them. The respondent accepts that there was no agreement as to the basis of his remuneration, but he claims to be entitled to payment on a quantum meruit basis. The sheriff at Rothesay found for the respondent on all material points. He considered that wherever the parties' accounts of the history differed, that of the respondent was to be preferred. He found in fact, inter alia, that the appellant instructed the services to which the action relates; he found in law that the respondent was entitled to payment on a quantum meruit basis, and he awarded the sum sued for, namely £3669.80.
2. When he rendered his invoice the respondent made a proposal, for the sake of goodwill, to reduce his account to £2819.80, but the appellant refused to pay even that. Shortly before the appeal the respondent's solicitors intimated to the appellant that the respondent would restrict the claim to the latter amount. At the hearing of the appeal counsel for the respondent consented to our substituting that sum for the sum awarded by the sheriff.

The grounds of appeal

3. The appellant has argued three grounds of appeal, namely (1) that there was no contract at all; (2) that if there was a contract, it was illegal and unenforceable having been entered into by the respondent in breach of the Code of Practice (1997) issued by the Architects' Registration Board under the Architects Act 1997, and (3) that in any event the respondent was not entitled even to the restricted sum.
4. The appellant has challenged the sheriff's findings in fact on a number of points but he has not submitted any proposed revised findings on these points. On each point on which he has referred us to the notes of evidence, there was plainly ample evidence to justify the sheriff's finding. In view of that, and in view of the sheriff's conclusions on credibility, we have no reason to vary any of the findings in fact.

Submissions and conclusions

5. The parties' submissions and our conclusions on them are as follows

(i) Lack of consensus

6. The appellant's submission on this point was that the parties never reached agreement at all or that, if they did, it was not one in which a term for payment could be implied, given that the pursuer was subject to professional standards which had not been followed. The appellant referred to Avintair Limited v Ryder Airline Services Ltd. (1994 SC 274) and to two unreported decisions of the Architects' Registration Board relating to Stephen Geoffrey John Linley (24 January 2001) and Barry Preece (29 October 2002). He cited the decisions of the Board as examples of cases where architects had been found guilty of unacceptable professional conduct in what, he said, were similar circumstances. It was clear from the first of these that a contract had been entered into.
7. However, in the course of his address the appellant's submission came to be that the sheriff erred in finding in fact that the appellant instructed the respondent to do the work and that there was no evidence from which the sheriff could infer any reasonable rate for payment. For the reason that we have given, these arguments are unstateable and we reject them.
8. We record for completeness that counsel for the respondent referred us in reply to Avintair Limited (supra) and to McBryde, Law of Contract in Scotland (2nd ed., at paras. 9-23, 9-46 and 9-47); but having regard to the narrow basis on which the appellant came to present his submissions on this point, we did not find these references helpful.
2. Illegality
9. Section 13(1) of the Architects Act 1997 requires the Architects Registration Board to issue a code laying down standards of professional conduct and practice to be expected of registered persons. Section 13(4) provides inter alia that failure by a registered person to comply with the provisions of the code shall not be taken of itself to constitute unacceptable professional conduct on his part; but shall be taken into account in any disciplinary proceedings against him.
10. The appellant submitted that the power of the Board under section 13 was comparable with that of the Law Society under section 31 of the Solicitors' Act 1974 to make rules of professional conduct. The code therefore had the force of law. It was to be treated as if it were a statutory instrument. This was confirmed by the use of the verb "should" in Standard 4 of the Code on which the appellant relied. Standard 4 prescribes, in brief, that an architect should not undertake work unless the parties have clearly agreed in writing the terms of the contract, and it specifies five particular points on which such agreement should be reached. Although the sheriff had, erroneously, been referred by the appellant to the 1999 edition of the Code of Practice (and Standard 13) there was no material difference in the language. The appellant submitted that "should" implied that there was a mandatory obligation. It was the past tense (sic) of the word "shall." The appellant also referred to section 23 of the Architects Act 1997 and to Mohamed v. Alaga & Co. (a firm) ([1999] 3 All ER 699). In that case it was held inter alia that rule 7 of the relevant Rules made under the Solicitors' Act 1974, which provided that "A solicitor shall not share his or her professional fees ... " imposed a mandatory requirement on solicitors and, having the force of subordinate legislation, rendered any contract entered into for such sharing illegal and unenforceable.
11. In our opinion, the sheriff's reasoning in his rejection of this argument is correct. It is plain from the terms of section 13(1) and (4) of the 1997 Act and from the Code itself that the provisions are not mandatory. In any event, although it is unnecessary to go further, we are not persuaded that, having regard to the language of section 13 of the 1997 Act and of the Code itself, and particularly of its preamble, it can be said to have the same effect as rules made under section 31 of the Solicitors' Act 1974.
12. We add for completeness that although in reply counsel for the respondent referred us also to section 126 of the Scotland Act 1998 and to section 21(1) of the Interpretation Act 1978, we do not find it necessary to refer to these provisions.

(iii) Quantum meruit basis of claim

13. The appellant submitted that the respondent had failed even to justify the restricted sum of £2819.80. We were unable to follow the appellant's argument, or the arithmetic on which it was based. It appeared to proceed on the erroneous view that, on a selective and restricted interpretation of letters from the respondent dated 7 December 1998 and 11 March 1999, the respondent was obliged to discount his invoice even more as a matter of goodwill. The sheriff's findings in fact demonstrate that the respondent did the amount of work to which his invoice relates and that the hourly rate sued for is reasonable. Had it not been for the concession made by the respondent on this question, we would have adhered to the decision of the sheriff to award the sum sued for. For his part counsel for the respondent was content to submit that the appellant's interpretation of the correspondence was erroneous. No new matter of law was raised.

Interlocutor

14. We shall therefore allow this appeal to the extent of substituting the sum of £2819.80 for the sum decerned for by the sheriff. Quad ultra we shall refuse the appeal. The appellant did not oppose the respondent's motion for the expenses of the appeal. We shall grant the motion.