Introduction 

The maxim of ‘approbate and reprobate’ reflects the principle whereby a person cannot both approve and reject an instrument, often more commonly described as blowing hot and cold, or having one’s cake and eating it too.  It began life in Scots law as part of the general doctrine of homologation, and refers to the implied assent to an imperfect deed, contract or settlement, which is to be inferred from circumstance.  For further discussion on this, see Personal Bar, Reid and Blackie, 1st ed, 2006, para. 1-11.

Bell (Bell’s Commentaries on the Laws of Scotland, 7th ed., Book II, Part II, Chap IX, pp141-2), notes that “the Scottish doctrine” approaches “nearly to that of election in English jurisprudence”.  This article sets out the extent to which Bell’s statement remains true.  In particular, it highlights the development of the scope of the doctrine within Scots law following the recent decisions in Redding Park Development Company Limited v Falkirk Council [2011] CSOH 202, and Highlands and Islands Airports Limited v Shetland Islands Council [2012] CSOH 12, and that the Scottish courts have now shown willing to extend the use of the doctrine in Scots law beyond its traditional scope.

In Scots Law

The Scottish doctrine of approbation and reprobation provides that a person cannot both assert his rights acquired from part of a document and reject the rest of the document at the same time. In practice, the application of the doctrine has traditionally been limited to the area of wills, trusts and succession.

The doctrine commonly arose around the subject of legal rights, where a beneficiary of a will had to decide whether to receive a legacy or whether to invoke their legal rights.  With regard to the discharge of legal rights upon the acceptance of legacy, this has been superseded by section 13 of the Succession (Scotland) Act 1964.  However, there remains a place for the doctrine within the Scots law of succession.  For example, in Bruce's Judicial Factor v Lord Advocate [1969] S.C. 296, the heirs to a will faced the difficulty of attempting to argue the invalidity of the revocation clause of the will without approbating the rest of the deed.  Although the case was decided based on other considerations, Lord Justice-Clerk (Grant) did refer to the doctrine in such a way as to suggest its application to be apt in that case (ibid at 306, where he notes that he did not see how the reclaimers could “surmount the hurdle of approbate and reprobate”).

However, beyond this limited scope, there has not, until recently, been an acceptance of the doctrine in other areas of Scots law.  Although there are few reported cases where its application has been argued for, there are some where the doctrine has been expressly denied use.  For example, the case of Birnie v Bariff County Council [1954] S.L.T. (Sh Ct) 90 involved the Town and Country Planning (Scotland) Act 1947, where it was noted that approbate and reprobate “is not among the canons of statutory construction” and as such the judge rejected the respondent’s arguments on this.  By contrast, in the case of McKinnon, Petitioner [2003] S.C.L.R. 283, which involved the judicial review of the decision of a medical referee, Lord Johnston considered that the petitioner’s actions resembled the notion of approbate and reprobate, which he said, is “something which the Scots courts have never recognised as an appropriate position for any litigant to adopt” (ibid at 289).

The notion of approbate and reprobate might be thought to be akin to the doctrine of personal bar in Scots law.  However, the test to be satisfied for personal bar is stricter.  It requires there to be not only an inconsistency, but also reliance by another party (Personal Bar, Reid and Blackie, 1st ed, 2006, Chapter 2).  Thus, it requires that one must have led someone else to believe through one’s conduct that a particular course of action was being chosen, causing the other person to rely on that.  Similarly, the doctrine of waiver, whereby a right can be abandoned expressly or impliedly through conduct, currently requires there to be a reliance and conduct of affairs based on the waiver, by another party (although this aspect has been criticised – see The Law of Contract in Scotland, McBryde, 3rd edition, 2007, para. 25-16 et seq.).  Thus, the concepts of personal bar and waiver can presently be distinguished from approbate and reprobate, but the common thread is one of fairness and as Bell sets out, like personal bar, approbate and reprobate is grounded in equity. 

In English Law

In English law, the courts readily refer to the principle of approbate and reprobate, although this is generally done under the English doctrine of “election”.  The term “election” has two distinct categories, as described in Halsbury (Halsbury’s Laws of England, vol. 16(2) 4th ed. reissue, 2003, para. 962): firstly, “the common law principle which puts a person to his election between alternative inconsistent courses of conduct”, and secondly, “the equitable doctrine of election”.

The second category, described further in Codrington v Codrington [1875] LR 7 HL 854 at 861-862 per Lord Cairns L.C., concerns the situation “where a deed or will professes to make a general disposition of property for the benefit of a person named in it, such person cannot accept a benefit under the instrument without at the same time confirming to all its provisions, and renouncing every right inconsistent with them.”  Interestingly, he notes that this follows the “well-settled doctrine… in the Scotch law… of ‘approbate’ and ‘reprobate’”.  This category of election generally reflects the scope of approbate and reprobate as traditionally applied in Scotland.

The first category of “election” goes further, to include situations which involve inconsistent courses of conduct, but without reference to a deed.  For example, in Express Newspapers plc v News (UK) Ltd [1990] 1 WLR 1320 the plaintiff put forward one argument in the claim and a contradictory argument in the counterclaim.  They were held unable to do so, through application of the principle of approbate and reprobate in the context of election.  Equally, in Redworth Construction Ltd v Brookdale Healthcare Ltd [2006] EWHC 1994 (TCC), the claimant attempted to rely on a different case in court to the case put before the adjudicator in the preceding adjudication.  It was held that they could not approbate and reprobate their previous argument.  The approach in these two cases could be seen as conflicting with the tradition in Scottish court pleadings of averring alternative (esto) cases which conflict with each other and do often enable a pleader to ‘have one’s cake and eat it too’. 

Therefore, in England, the principle of approbate and reprobate appears as an expression of the legal doctrine of election, rather than being a legal doctrine in itself, as it is in Scotland, and it has been treated as a more flexible principle of wider application than has been the tradition in Scots law. 

Therefore, until recently, it could be argued that Scots law has not had a doctrine corresponding to the first of the categories of election described in Halsbury.

The application of approbate and reprobate to recent adjudication decisions in England

There have recently been a number of cases in the English courts, involving decisions of adjudicators in construction disputes, where approbate and reprobate has been expressly applied when determining challenges to the jurisdiction of the adjudicator.  Cases have arisen where a party attempting to challenge the validity of an adjudicator’s decision may have through their conduct, impliedly validated the decision, thereby defeating their jurisdiction arguments.

Notable decisions include the case of PT Building Services Ltd v Rok Build Ltd [2008] EWHC 3434 (TCC) where in a challenge as to the validity of a second adjudicator’s decision, the responding party was held to be unable to argue the invalidity of the first adjudicator’s decision, whilst at the same time arguing the invalidity of the second adjudicator’s decision based on the existence of the first decision.

For the English courts, this appears to be a straight-forward application of the doctrine of election, using the principle of approbate and reprobate (although the category of election applied is not made clear).  In the recent Scottish cases of Redding Park (supra) and Highland and Islands Airports Limited (supra), the Court of Session has been persuaded to adopt a similar approach.

Redding Park

This case involved a petition for the judicial review of an expert determination.  The expert had been asked to determine matters in dispute in relation to the missives of the purchase of two areas of land by the petitioner from the respondent.  The parties had agreed that after paying the purchase price, the petitioner would carry out remedial works, and would then provide the respondent with evidence as to the certified costs of the works.  If the parties were unable to agree these costs, they would be referred for determination by an independent expert.

This indeed is what happened when the parties could not agree which heads of cost were to fall within the meaning of certified costs.  In the expert’s “first determination”, he determined the heads of cost.  However, he had not been asked to deal with quantum and therefore made no decision on the value of the costs.  Following the first determination, the parties could not reach agreement on quantum and so the independent expert was appointed again to determine this.  It is the decision of this “second determination” that the petitioner sought to have judicially reviewed.

The independent expert, in his second determination, determined that the certified costs were valued at £3,946,233.35 and that the petitioner therefore had to pay a “clawback” sum of £930,403.65.

The petitioner submitted that the expert did not have jurisdiction to determine a clawback sum and that as a result, the entire second determination was a nullity.  The respondent argued that if the expert had exceeded his remit, in determining a clawback sum, it did not follow that the whole determination should be reduced.

The respondent further submitted, using the doctrine of approbation and reprobation, that as the petitioner had in the meantime made payment of the sum found due, they had accepted the validity of the second determination and were therefore prevented from asserting its nullity.

Lord Menzies’ Opinion

The parties put forward their arguments regarding approbation and reprobation in the form of written submissions.  Lord Menzies did not repeat these in full, thus the full extent of parties’ arguments is not clear.  He did, however, specifically highlight a number of English cases cited by the respondent with which he agreed, namely Shimizu Europe Ltd v Automajor Ltd [2002] B.L.R. 113, PT Building Services Ltd v Rok Build Ltd [2008] EWHC 3434 (TCC), Lissenden v Bosch Limited [1940] AC 412 and Linnett v Halliwells LLP [2009] EWHC 319 (TCC).

Importantly, he noted in reference to these cases that “although the doctrine of approbate and reprobate was initially developed in the field of trusts, wills and succession, it is clear that it has been applied much more widely in the context of determinations of commercial and other compensation disputes over the last 70 years… I am satisfied that the doctrine may be applied in the present circumstances” (para. 54).  However, no separate analysis is presented as to the basis, as a proposition in Scots law as distinct from English law, for extending the doctrine beyond its traditional reach.

Lord Menzies agreed that “the independent expert had no power to do what he purported to do” in relation to the second part of the second determination (ibid at para. 51).  However, in accepting the respondent’s submissions regarding approbate and reprobate, he held that “the petitioner having approbated the second determination in its entirety, it is not open to it to seek to reprobate it in these proceedings” (ibid at para. 62) and the petition was accordingly refused.

Highlands and Islands Airports Limited

This case involved the attempted enforcement of an adjudicator’s decision as to a dispute regarding design and other services supplied in respect of construction works at Sumburgh Airport, Shetland.  The adjudicator’s decision awarded a substantial payment to the pursuer.  The defender sought to resist enforcement of that decision, and therefore payment, on the basis that the adjudicator arrived at his decision in breach of the rules of natural justice, rendering the decision unenforceable.The pursuer, however, argued that the defender had approbated the adjudicator’s decision by its conduct.  This was on the basis that subsequent to the decision being issued, the defender had issued formal notification, in accordance with the contract, of its dissatisfaction with the decision and its intention to refer the dispute to arbitration for final determination.

Lord Menzies’ Opinion

Lord Menzies held that the conduct relied upon was insufficient.  He did not consider that it “clearly or unequivocally approbates the decision as being valid” ([2012] CSOH 12 at para. 55).  Thus, he accepted the potential application of the principle, but rejected that the conduct referred to was sufficient to imply assent.  In particular, he held (para. 60) that it failed to meet the parts of the test outlined by Bell, that approbation requires: “(1) that the assent be clear and indisputable, applying directly and unequivocally to the contract, conveyance or settlement said to be homologated…and, (3) it must be an act that can be fairly ascribed to no other purpose than that of giving sanction to the deed or contract in question”. 

Conclusions

Given the ready application of approbation and reprobation in English cases over a period of time, it is perhaps surprising that it has featured so rarely in Scottish cases.  In that context, its acceptance for application in principle in Redding Park and Highlands and Islands Airports (and subject to any appeal in these two cases), perhaps reflects the Scottish courts catching up, and it is interesting to note the English courts’ reflection of the doctrine’s Scottish origin.  Whilst the Scottish courts’ acceptance of extending the doctrine in Scotland beyond its traditional reach can be seen as pragmatic, it also appears consistent with logic and fairness.  However, in future cases, further analysis may allow the legal basis of the extension in Scots law to become clearer.

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