COURT OF SESSION INNER HOUSE – THURSDAY 19TH FEBRUARY 2009

 

LORD CLARKE  - LORD CARLOWAY – LORD COULSFIELD

 

10.30am       Mr Hofford for HBM Sayers                         Stuart Wilkie (Litigant)                                           

 

Mr Hofford (MH)      I’ll start with 1,2 and 5, Mr Wilkie talks of a phonecall and the possibility of a recording. There is no clear evidence of this. An application was made, with the normal discussions. I objected to this line of evidence and it was sustained and the (Closed) Record has no line on this! There is no evidence stored on a phone call. It was an occasional practice at that time, but it was sporadic, not routine. There is no evidence. There was no such recording (10.35 a.m.)

 

Mr Wilkie did not represent the evidence of the Hearing at all. There wasn’t a letter lodged letter for HBM Sayers. There are no transcripts of the telephone conversation (10.37 am). Of course, there are no TRANSCRIPTS!

 

In paragraph 9 of the Lord Ordinary’s opinion this is an uncontroversial matter.The proposal was accepted – my objection was sustained – and was superceded by the proposal confirmation form – there is no issue about this! It’s in the record and in the policy of insurance. It was an application by phone on the 29th of July 1991!

 

At 7A and at 10 B-C. It’s quite clear from any reading – there is no pleading to that point!

 

Lord Clarke – It says ‘orally’ in the Policy Confirmation document?

 

Leo Hofford – That’s neither here nor there!

 

Lord Clarke – By virtue of this there’s no oral contract in the confirmation?

 

Hofford – its just temporary cover!(10.45am) We have no evidence of this!

 

Lord Coulsfield – but the publicity – we all know it – the phone, you make your call and get your insurance there and then?

 

Hofford – well, its clear

 

Lord Coulsfield – Its not clear to the layman!

 

Hofford – the contract for laymen?

 

Lord Coulsfield – Well he believes (looking at me) he has a contract. Mr Hofford, this is SHUFFLING!

 

Lord Clarke – Mr Wilkie raised the issue yesterday that it’s a consumer contract, under the Consumer Credit Act 1974

 

Lord Clarke – Are there any Findings in Fact? In the opinion at 59

Hofford – I think not M’lord

 

Lord Carloway – That’s a problem here

 

Hofford – That’s the fact of it – there wasn’t much adduced by this. It’s an alternative basis to the…..

 

Lord Carloway – There is no description

 

Hofford – There were so many I can’t recollect. There’s the telephone application – its driving at a different position. I can’t object to when that…

When sustained its out of time!  I can’t find any evidence on the oral contract.

 

Lord Clarke – (10.47am) Mr Wilkie’s made every effort to obtain it?

 

Hofford – It simply didn’t exist! Mr Wilkie is disingenuous about this – it’s nothing to do with the pleadings in the case 

 

It was pled on his instructions! Its dated November 2003 it’s a distance from the Brown case and Mr Hastings – he has a bit of a history, a resentment of lawyers  - he is particularly NOT HONEST, or makes sense – there is no record on the oral contract.  (NB – compare with my original writ in court in 98)

 

The contract was started in August 1991. It’s extraordinary he now claims this.

The Confirmation is indeed the proposal form!

 

He (Mr Wilkie) said he read out the Bones report, on page 59, but this was just a passing reference……some passing reference. Its difficult to see the true line between him in the bar and in the witness box! It is not noted on the form! Clearly he said something but the business does not mention this.

This is uncontroversial as a legal issue on page 76 (para 80). Mr. Wilkie, in my submission, has nothing to challenge.

 

My point 2 – Mr Wilkie says Mr Cooper deliberately withheld evidence of transcripts of telephone calls and this is incorrect. Mr Harris is said to have done something too – this is not the evidence. Mr Wilkie is giving a misleading gloss, or perception of the evidence. Mr Harris was objective and gave his evidence on the material risk!

 

Lord Clarke – When was the breach of warranty or failure to disclose

 

Hofford – Breach of Warranty in September 1991 when he obtained the Mee report, showing poor condition of the property. The warranty breach is the keeping property in good state of repair. His knowledge in September 1991 is a breach of the Warranty. The failure to disclose was at Renewal in July 1992, the annual contract, it was not in a good state of repair.  The insurers would not have taken out the insurance – they would not have accepted the risk. Lord Brodie accepted Mr.Cooper. There were certain risky things about Mr.Harris, but the two corroborated. No evidence led to contradict either. 

 

Lord Carloway – He had to accept Mr Harris – with a slight touch of salt!

 

Lord Clarke – The Proposal Confirmation form contained a Warranty on 25th August, or is it 29th August?

 

Hofford – The Warranty that it is in a good state of repair.

 

Lord Clarke – When did he breach the warranty

 

Hofford  - on 22nd September 1991 – he was aware of the contents of the Mee report and that its kept in a good state of repair. On 22nd September 1991 (11.07am).

 

There was a duty to disclose on the date of renewal That’s what I understand!

 

For Mr Cooper and Harris – its simple… I cannot remember one instance when they failed to answer a question… but Mr Wilkie, he is a different sort of man, no question – I have sympathy for him -  but it was not being put to them and this Harris to Whitehead conversation being inappropriate, there was no interaction. There was no interaction.There was no evidence of this (11.12am)

 

As for Mr Cooper, its simply not true. If we had transcripts we would have this!

 

At 70(21) and the undertaking of Ms Milligan – this was only about transcripts. At 70 (20) There is nothing to be provided.

 

Lord Carloway - Lord Glennie’s interlocutor says the Defenders documents sought?

 

Hofford – The oral application. (11.15am)

 

Lord Carloway – Mr Wilkie’s notes these were transcriptable

 

Hofford – Agents looked, but there was nothing.

 

There was no specification of documents and no Commission of Diligence. He hasn’t done anything to provide these.There simply wasn’t anything(11.15am)

 

Lord Coulsfield – What about what was on the computer screen? Typed?

 

Hofford – There is no evidence of this. No permanent record.

 

Lord Carloway – Maybe it was a template, something in the word processor!

 

Hofford – There was nothing there to produce. At least that’s my instruction from agents.

 

Now onto partiality

 

Lord Carloway – that’s your heading?

Hofford – Yes 2 …(muffled)….. 17 and 21

 

Onus on the Defender, a burden thrown on him by the Lord Ordinary – its completely untrue (11.17am) He wasn’t forced to lead, it’s a sense of proceedings – ordained to lead. Mr Wilkie wanted to and was eager to, there was no onus the Defenders to go first. There was no discussion on this. He might have said something – it was trhe best thing for him to lead. The lord Ordinary never suggested this. At least that is not the impression that I got.

I know the onus was on me. Mr Wilkie is at the heart of the storm and was really keen to go on. (NB - I was asked to lead and FORCED to speak first!).

 

Hofford - Ground 3. Regarding the cross examination, especially Mr Mee, interruptions by the lord Ordinary and by me. It’s the same problem, I can’t see what he (Wilkie) is on about. He (Lord Ordinary) is entitled to interrupt and intervene to ensure fair play, there’s not time wasting, or if questions are irrelevant. He (Wilkie) was given an extremely long reign and there were remarkably few interruptions and then only made to assist Mr Wilkie. Mr Wilkie kept Mr Mee in for 4 days under Cross-examination (NB a lie) and took the lion-share – it was a protracted business. There was no merit in the course of his cross-examination. There was no failure to give him equal time.

 

Lord Carloway - The Pursuer has lodged in his appendix a transcript of Tuesday 8th November, 2005,. David Mee was interposed.

 

Hofford – he was kept over a weekend. (11.25am)

 

Lord Carloway – But, the Whiteheads started on the 10th November?

 

Mr.Mee was interposed.

 

Hofford – Yes, his cross exam was longer than anyone in the proof (?untrue)

 

There were leading questions over and over again. There were recitals. The Lord Ordinary had to intervene. As to Lord Brodie fleeing the Court, showing anger and he fled the Court – well, he was entitled to do so. He was sorely provoked. As to failing to investigate fraud….there was a whole list and it was not in submissions…………..there was too much to understand or deal with! 

 

Breaking into General Department ? Such an extraordinary thing to say? It is an extraordinary and bizarre allegation to make.

 

Mr Mee was suborned indirectly – he is an Architect. He was procured to commit perjury? From Mr Wilkie’s ex parte statement – a very serious charge!

 

There was a MEETING with agents for the Defenders, discussing his drafted report, with Mr Moore (11.31am) and he spoke to him to take a precognition. This is standard procedure. He was the fully instructed acting Solicitor. The Lord Ordinary does not mention this because it is of no significance. At no stage was Mr Mee lying, nor did Mr Wilkie make any suggestions of that nature. He was asked by Lord Brodie if he was lying! He’s making all these accusations out of time.

 

The Lord Ordinary’s opinion at 90. Lacking any proper specification (11.35am) Haynes report in file 7/4. Report is dated 24th October 1990. The date is in the repudiation letter. There were various objections over two days on my hypothesis. Two days…… its just a piece of paper! Anyway, until its spoke to. Two Haynes reports dated. One was undated. I am not really concerned with this. Its 24th October 1990and its close to 29th July 1991.He was provided with these documents. As to the 2nd Haynes report, I am not particularly concerned

with it. It might have been lodged in process, I can’t recollect.

 

Lord Coulsfield – Its in the Direct Line file. Its quite a significant report. Its clearly after the first report. It is material because its after the first report. Was it used in Cross-exam, this 2nd report, is my point?

 

Hofford – I would accept that. Its not been adduced in evidence. It was put before some witnesses by Mr Wilkie, I can’t recall, but I have no interest in the 2nd report.

 

Lord Coulsfield – I am not happy with that. It clearly revised the 1st report.

 

Hofford – We don’t know when it was done.

 

 

Lord Clarke - At p53, it was put by you, this 2nd report.

 

Hofford – it was absent, we don’t have the transcript.

 

Lord Clarke – the 2nd report was put to Mr Harris, after the first report.

 

Lord Coulsfield – Its long before the proposal. The first is nine months, The 2nd report is quite material.

 

Lord Clarke – The property improved. This is valuable evidence for the Pursuer.

 

Hofford – There’s no date on it. There was no evidence of work done to it. There is the Mee report at September 1991. No evidence of any workmen.No evidence of Mr Newhouse. Two Architects considered the condition of the property at that time, At that time of the reports. In Para 90, this was collateral material, not in a position to run this now. The Haynes report and Spenceley report are entirely out of account. He is to produce something from these reports. It has no bearing on matters (11.47am).

 

Mr Wilkie wanting the Lord Ordinary to recuse himself – it didn’t happen!

 

                                                                                                                            

 

Regarding the Lord Ordinary fleeing the Court, during his submissions, over concerns of his partiality. He did not.  There was always impartiality and huge forbearance. He can’t say he was failing to investigate. The Lord Ordinary was under no such request for an investigation.

 

Ground 13 was that he failed to give weight of evidence to Affidavits by Bones and Whitehead. Affidavits para 54 page 35 of opinion. (11.52am)                        

Mr Wilkie said he (Bones) did a Structural survey yesterday, he did not do so!

Lord Brodie accepted the Affidavits for what they were, but restricts weight.

 

Mr Bones Affidavit is not in appendix. The Cottier one is a short letter not a report

 

Mr Wilkie (70/12)– Mr Hofford has been lying to this Court (11.55am)

 

Lord Carloway – Sit down.  ( I sat down to avoid possible contempt charge)

 

Hofford – As for Mrs Whitehead, he rejected her evidence as a question of weight. He (Wilkie) said there was a diary of some sorts , but there was no mention of this in the proof. We simply do not know that.

 

As to witnesses, it was due to timetabling. They were called by Mr Wilkie. It was purely a matter for him (Nb Mrs Whitehead forced to wait until after my forced first entry into the witness box and David Mee’s interposed entry by Lord Brodie, in breach of the agreement with Lord Wheatley?/ Glennie for a period of a week, despite being called for first by me!).Mr Mee was interposed

Before them – it’s a matter for Mr Wilkie to arrange his witnesses.

 

Mr.Wilkie’s cross-exam went on for a long time. It was adjourned. Objected  repeatedly and he repeated objections over and over. There is no criticism of the Lord Ordinary.

 

The issue that the Lord Ordinary did not address all submissions and arguments  - there is no criticism.

 

As to the Hearsay evidence of Glen and Brown or Glen and Brown procured or suborned being used in evidence. They were not in the evidence, no affidavits and did not come to Court.

 

At para 56 – And Caton and Watt – neither gave evidence. Watt was in Wilkie v Brown and said there was no completion certificate.

 

Complaint of full volumes of transcripts (12.05am) they were full, maybe one page missing.

 

Weight to Caton letter (there is no Caton letter?) there are no affidavits.

Page 30 page 17 – the letter was uncontentious.

 

Ground 17 – No balance given to this letter over Affidavit of Russ Bones or to Affidavit of Cottier? Its evidence.

Hofford Grounds 17 – Improvement grant during Brown, at least two was not contested.  (N.B Windows nothing to do with Brown, I paid £10,000 to get a 50% £5000 grant from Lochaber District Council, which is totally standard)

 

The Bills from Mr Newhouse being refused by Lord Brodie as an example of partiality is nothing.

 

Mr Wilkie rails against the evidence of Mr Mackinnon, there is no weight in this matter.

 

Lord Brodie himself had reservations about Mr Harris, so nothing there.

 

The Lord Ordinary found Mr Mee and Mr Spencely marginal in areas and doubts Spencely, but its Spencely who is his own witness. There is a couple of months and the same evidence. As for Harris Mackinnon and Mee, it was never put to them that he (Wilkie) had reservations – a wild allegation. He did not say any of them lied (Nb all three actually – Harris approaching witnesses, MacKinnon – tested his credibility and called him a liar and Mee over his report being contaminated by other evidence and advice by Hastings, Haynes Report, et al – physically lodged his own conflicting letter – liar, liar!) The photographs added nothing (Liar), of course no assistance from the transcript. There is no value without the transcripts of anything put to Mr.Mee.

 

Lord Coulsfield 70/17 - transcript with Mr Mee?

 

Hofford – I can’t say categorically. Photos are all their own – there is nothing about them. Its quite hard to break it into sections.

 

The slaterwork evidence refused to lodge with the bills was a formal motion, he wished to test the credibility of the witness – it does bear scrutiny!

 

It does not matter ultimately, he got what he wanted and Mr MacKInnon was the last witness in the case. It was a strategy (12.20 am)

 

As to no evidence at renewal –there was John Mackinnon in Spring of 1992

 

The Lord Ordinary para 81 – he was aware of the date of renewal, instead of the date of inception. The LDC letter. He knew there was no significant remedial work prior to the date of renewal.

 

Lord Clarke, But was he aware of that at date of inception?

 

Hofford There was no evidence of any change

 

Lord Clarke – Not one iota? There is no attention to the Secondary report (Haynes)?

 

Hofford – There was no significant change. The emphasis was on the Mee report. He (Wilkie) suddenly became aware of the Mee letter. There was no significant change.

Lord Clarke – page 45 para 66, it says during 1992 – it’s a finding on the facts

                       3rd part – full disclosure is not required at renewal. That’s Mr               

                       Wilkie’s supposition. What about 27th May 1993 letter. The

                       Defenders have failed to prove their case! True to say?

 That’s the basis of the repudiation. Defence in not so good  

  condition?

 

It’s a central part. The historical evidence.

 

Hofford - ~That’s correct as far as it goes. There is no evidence.

 

Lord Clarke – That’s what? Its signed by Mr McKee and says that a misrepresentation of material fact!

 

Hofford – I accept that it. It does not expand on the Mee report.

 

Lord Clarke – In July of 1991, or August 25th ?

 

Hofford – Yes, but he was in breach three weeks later

 

Lord Coulsfield – The letter is so precise

 

Hofford – I do not dodge that fact. It’s a misrepresentation.

 

Lord Coulsfield – There is nothing to separate the two sentences.

Its certain. A continuing problem. Inception.

 

Lord Clarke – No other case is pled.

 

Hofford – A breach of Warranty

 

Lord Clarke – Lord Brodie did not accept averments.

 

Hofford – I’m not confused by this.

 

Lord Clarke – Manifest Shipping –good faith

 

Hofford – It never says you can’t expand upon it.

 

Lord Clarke – This could be an ‘old fashioned pleadings case’

                       Its in the letter and in the case!

                      Was the question in the pleadings? There was no challenge to   the pleadings? Its in the Grounds of Appeal

 

Hofford – He didn’t take the point.

 

Lord Clarke – Well, he is taking it now!

 

Lord Coulsfield – Its never too late to say its not been proved! (12.37a.m)

Lord Coulsfield – its legal

 

Lord Clarke – The Insurance Company elected to defend on this ground.

 

Mr Wilkie says you are shifting goal posts. You could not expand upon this

 

Hofford – but I have proved it was not in a good state of repair.

 

Lord Clarke – But you have no case pled! No case pled against renewal!

 

Hofford  -let me

 

Lord Coulsfield – And 2 – its all related to Mr Wilkie’s knowledge. Its focused on the date of inception.

 

Hofford – it’s a continuing obligation. The letter of repudiation is open to expansion. Its combined with the pleadings. The warranty. (12.45am)

 

Lord Clarke – Ultimately, the attention is to this letter of repudiation

 

Lord Carloway – the letter is broader than the pleadings.

 

Lord Clarke – The Lord Ordinary proved the case! It surprised the Lord Ordinary. We may have to give consideration to this. We’ll stop now

 (12.45pm) and resume at 1.45pm.

 

Hofford – 1.49pm asked ‘for renewal part to be put aside to take instructions from my client’.  (Immediately accepted by Lord Carloway).

 

There were procedural irregularities raised in 7,9,10,15,18,19. The same report was put to all parties. I don’t understand this Hayne’s thing. Its misleading information.

 

The 2nd ground at (9) forged document to Mrs Whitehead, that I was aggressive – that was quite wrong.

 

Ground (10) He was truncated by the Lord Ordinary and (19) My cross exam

was truncated by my being prevented and constantly objected to! It’s a question of weight.

 

Ground (15) Lord Ordinary allowing leading questions, putting words in witnesses mouth – Mr Mee was an expert – I completely refute this! I can’t remember any objections of leading questions or words put in mouth! I never put lying words or mislead.

 

Ground (18)  The exchange of witness lists. That is a lie. I never knew who he was calling. Mr Wilkie refused to give their names saying I don’t wish them to be primed as witnesses by the Defenders) Mr Wilkie was obsessed by this.

 

Ground (19) Threatened with contempt re abusive Cross-exam of 7th day of the proof. Let me give you a picture of what occurred. He was objecting to the cross-exam particularly the Haynes Report, which I was putting as a hypothesis. Just the terms of the report – his objection was repelled. A warning again but he flagged it up again. He continued and raised his voice and Mr Wilkie rebuked the Lord Ordinary saying do not speak to me like that. The Judge left, as he is entitled to do, and came back to indicate that he may have been in contempt of Court. I then curtailed my cross-exam (after 4 and a half days) He (Mr Wilkie) refused to re-exam, he declined to re-examine.

That’s the history. The Lord Ordinary exercised restraint. 

 

Mrs Whitehead was honest enough, but it was the view of a friend.

 

4(5) Quantification of loss as the correct basis –reinstatement? Of £179,340, if you look at part E of the policy it was never repaired or replaced, reinstated. Page 86  - the Lord Ordinary rightly says that’s the only information there is!

No 12 in the Appendix – of the £95,500 that’s liable to be on the high side.

The property was in a bad condition. There was the intrinsic worth of the land.

Then there was the byre value. Bones never gave any evidence of this, but he still accepted the Bones valuation. He (Lord Brodie) was generous to accept the valuation of Bones.

 

Lord Carloway – It was sold in 1996?

 

Hofford – A house was built on the site.

 

Lord Carloway The property was rebuilt? Was there a figure on the sale of the property?

 

Hofford – the valuation as per the Bones report. There was no talk of reinstatement, it never progressed that far.

 

Lord Carloway – Does the award in the Brown case affect this case?

 

Hofford – The award does not affect this. That does not enter into this action.

It’s a contract of insurance – he is entitled to the loss so we can’t take that into account  in this calculation..

 

Lord Clarke – There was evidence of the Architect’s discussion. Ref Lord Patrick in Burns?

 

Hofford – As in the Judicial dictionary

 

Lord Clarke – That is as far as the Authority goes?

 

Hofford –Yes.