Commercial

Inveresk plc v. Tullis Russell Papermakers Limited [2008] CSOH 124

Wed, 03 Sep 2008 17:13:00 GMT

Debate:- In this action the pursuers claim £909,395 from the defenders by way of Additional Consideration under an Asset Purchase Agreement entered in to on 9 June 2005. There is a separate claim by the defenders under the Services Agreement in which they are the pursuers. On 15 February 2008 at debate at the instance of both parties Lord Drummond Young repelled the defenders' pleas-in-law, sustained the pursuers' first and third pleas-in-law and granted decree against the defenders for payment of £909,395.00 with interest thereon, as craved. The defenders reclaimed.and sought and were granted leave to amend and on 20 June 2008 the Inner House recalled the interlocutor of 15 February and remitted the whole matter back to the Commercial Court for a fresh debate on the amended pleadings where two issues were argued:- (1) the court considered the proper interpretation of the contractual provisions for ascertaining the Additional Consideration payable by the defenders to the pursuers, and the application of those provisions to the events that had occurred; and (2) the court considered the relevancy of the defenders' plea of retention added by their amendment in the course of the reclaiming motion.

Fleming Builders Limited Limited v. Mrs Jane Forrest or Hives & Mr. William Forrest [2008] CSOH 103

Thu, 24 Jul 2008 10:32:00 GMT

Preliminary Proof:- In May 2001 the defenders purchased a property in Bothwell to live in. The couple decided to build an extension which was defectively erected and the defenders decided to demolish the defective extension and the original house and build a new home from scratch. The defenders invited tenders to bid for the work to build the new property. By letter dated 20 December 2005, the defenders' chartered surveoy wrote to the pursuers stating inter alia:- "We have been authorised by the client KWF Holmes Ltd whose registered office is at Silverwells House, 114 Cadzow Street, Hamilton, ML3 6HP, to accept the tenders submitted by you on the 2 November 2005 in the amount of £521,791.03 further revised by your letter dated 2 December 2005 in the amount of £513,791.03." The defenders' solicitors submitted that there was no contract between the parties and following sundry procedure an adjudicator found that the parties to the contract were the pursuers and the defenders. In her decision letter, dated 26 September 2007, she decided that the defenders were to pay the pursuers the sum of £112,598.75, within seven days of the date of the decision, together with interest on sums certified in interim certificates and a joint and several liability for the adjudicator's fees and expenses in relation to the adjudication. The defenders made no payment to the pursuers in respect of these sums and a commercial action was raised in October 2007. At a preliminary proof the court considered:- (1) whether the adjudicator acted ultra vires and had jurisdiction to adjudicate; (2) that the defenders pleaded retention and set-off on the basis of an unspecified claim for damages; (3) the question "if no notice of intention to withhold was given, does that preclude the right of retention or set off by the defenders?"; and (4) whether the adjudicator's decision should be reduced as being contrary to the rules of natural justice. The court considered evidence led by both parties in determining, in particular, whether there was a contract and, if so, between whom.

Anna Jackson v. Hughes Dowdall [2008] CSIH 41

Wed, 09 Jul 2008 09:50:00 GMT

Commercial - Appeal from Sheriff Court:- This was an appeal from the decision of a sheriff principal sitting as a sheriff in a commercial action. The pursuer raised proceedings in 2003. In her initial writ, the pursuer sought damages from the defenders for loss and damage said to have been suffered as a result of their professional negligence following her divorce from her husband. The proceedings commenced in the form of a commercial action, under Chapter 40 of the Ordinary Cause Rules 1993. On 13 December 2004 the sheriff closed the record and allowed a debate under rule 40.12(3)(j) on the defenders' plea to the relevancy of the pursuer's averments. Here the court considered the conduct of the sheriff following the debate, in particular, the manner in which the sheriff dealt with the case following the debate, when he followed a course of action on which the parties were entitled to be heard without affording them that opportunity. The defenders had not had an opportunity to be heard on the question whether leave to lodge a minute of amendment should be allowed; nor had they been given an opportunity to answer any minute of amendment; nor had they been heard on the question whether any proposed amendment should be allowed. This was due to the sheriff e-mailing the pursuer's agents without notifying the defenders' agents at the same time. In this appeal the court considered the more proactive role of a judge/sheriff in a commercial action in considering whether what had been done by the sheriff was incompetent.

Sovereign Dimensional Survey Limited for an Order under Section 1 of the Administration of Justice Act 1972 [2008] CSOH NUMBER85

Wed, 11 Jun 2008 13:35:00 GMT

Petition for an order under section 1 of the Administration of Justice Act 1972:- On 27 September 2006 the respondent was appointed a director of the petitioner. Here the petitioner sought the recovery of confidential information relating to the petitioners' business held by the respondent following his resignation from the petitioners on 15 November 2007. On December 2007, an order was made in terms of the petition, appointing a Commissioner to search for and take all other steps necessary to take possession of the documents and property listed in the petition. On 10 December 2007, the Commissioner attended at the respondent's home in Aberdeen to conduct a search and considered that certain items, including a laptop computer appeared to have been removed. The petitioner alleges that the respondent failed to obtemper the court's interlocutor of 7 December 2007. At debate on the first and second pleas in law for the respondent in his answers to the petitioner's minute alleging Contempt of Court:- "(1) The Petitioner's averments being irrelevant et separatim lacking in specification, the minute should be dismissed.; (2) The meeting of 10 December December being for the purpose of negotiating a settlement of the dispute between the parties, anything said is privileged, and the averments thereanent should not be remitted to probation." It was submitetd on behalf of the respondent that the petitioner's minute failed to give clear and specific notification of the nature of the alleged contempt. Further, it was submited that the meeting on 10 December 2007 was privileged. On behalf of the petitioners it was submitted that the court should allow a proof on the minute and answers.

Spiersbridge Property Limited v. Muir Construction [2008] CSOH 44

Thu, 20 Mar 2008 16:58:00 GMT

Building Contract - Debate:- In June 2005 the parties entered into a building contract whereby the defender, a construction company, would erect for the pursuer, a property development company, a number of buildings. In this action the pursuer sought damages for alleged delays by the defenders in completing the works whilst the defender counterclaimed for an extension of time. A proof before answer was appointed for the dispute between the parties as to whether the defender was in breach of the building contract as alleged and, if so, as to the amount of any damages to which the pursuer was entitled. At debate the parties were at issue as to whether, assuming that the pursuer was ultimately found to be entitled to less than it demanded and was paid under the bond, it was obliged to account to the defender for that excess. Further in that event a question also arose, not whether the pursuer was entitled to hold on to any such excess but whether that its duty to account for the excess was owed to the bank and not to the defender.

Christie Owen & Davies v Mrs Anne Campbell and Others – Glasgow Sheriff Court, 10th December 2007

Thu, 17 Jan 2008 20:05:00 GMT

Appeal - Commercial Action - Whether there had been Intimation of an Assignation

Following a Diet of Debate in a commercial action, the Pursuers/Appellants appealed against the Sheriff’s decision. The issue was whether there had been valid intimation of an assignation. The parties agreed that the test which the Court had to apply was set out by Lord Kincraig in Libertas-Kommerz Gmbh, Appellants 1978 SLT 222. The Pursuers had marketed the lease of a licensed premises on the instructions of the First Defender. The Pursuers and the First Defender had entered into a Sole Selling Rights Agreement, which provided that the First Defender authorised her Solicitors, the Second Defenders, to pay the Pursuers’ fees out of money received by the Second Defenders. After Missives had been completed, the Pursuers wrote to the Second Defenders enclosing their fee note. They also enclosed a copy of the Sole Selling Rights Agreement, although they made no reference to the Agreement in their letter. The letter did not direct the Second Defenders to the terms of the Sole Selling Rights Agreement - it simply requested payment of the Pursuers’ fee note. There was nothing in the terms of the letter to alert the Second Defenders that they were being given intimation of an assignation. The Sheriff Principal upheld the Sheriff’s decision that there had not been enough to convey an intimation to the Second Defenders that money for which they had a duty to account to the First Defender had been assigned to the Pursuers. The Pursuers’ appeal failed because they had not met the test set out in Libertas-Kommerz Gmbh.

Save and Prosper Pensions Limited v. Prudential Retirement Income LTD [2007] CSOH 205

Thu, 10 Jan 2008 17:26:00 GMT

Petition - for the sanction of an insurance business transfer scheme pursuant to Part VII of, and Schedule 12 to, the Financial Services and Markets Act 2000 under which part of the long term insurance business carried on by Save and Prosper Pensions Ltd is to be transferred to Prudential Retirement Income Ltd. In the course of considering the Petition, the question has arose as to whether the Court has power to sanction a scheme which transfers only some of the rights and liabilities arising under a policy.

UPS Supply Chain Solutions v. Glasgow Airport Limited [2007] CSOH 202

Wed, 19 Dec 2007 18:04:00 GMT

Expenses:- On 30 November 2007 a proof before answer was allowed at the end of an amendment procedure that began at the instance of the pursuers on 4 October 2005. Here the court considered the question of the expenses of that amendment procedure. The defenders sought from the court:- (1) an order finding the pursuers liable in the expenses of the process from the beginning of the amendment period to date on an agent/client, client paying basis; and (2) for certification of a chartered accountant as a skilled witness. Here the court considered the circumstances of the case including the conduct of the litigation and any delays or unnecessary procedure resulting from the conduct of the litigation

APC Limited (in receivership) v. Amey Construction Limited & Sir Robert MxAlpine Limited & Taylor Woodrow Civil Engineering Limited & Barr Limited together trading as Amey Robert McAlpine Taylor Woodrow - Barr, M6 Joint Venture [2007] CSOH 129

Fri, 13 Jul 2007 00:00:00 GMT

Commercial Action - Motion for (1) Certification of a Skilled Witness and (2) Additional Fee

Her Majesty's Secretary of State for Trade & Industry for a Disqualification Order in terms of the Company Directors Disqualification Act 1986 [2006] CSOH 153

Mon, 09 Oct 2006 23:00:00 GMT

Petition for a Disqualification Order in terms of

Her Majesty's Secretary of State for Trade & Industry for a Disqualification Order in terms of the Company Directors Disqualification Act 1986 [2006] CSOH 153

Mon, 09 Oct 2006 23:00:00 GMT

Petition for a Disqualification Order in terms of

The Scottish Lion Insurance Company Limited for Sanction of a Scheme of Arrangement Under Section 425 of the Companies Act 1985 [2006] CSOH 37

Wed, 08 Mar 2006 00:00:00 GMT

Additional Fee