Contract (Commercial)

C R SMITH GLAZIERS (DUNFERMLINE) LIMITED v TOOLCOM SUPPLIES LIMITED (Defenders) and FIT-LOCK SYSTEMS LIMITED (Third Party) [2010] CSOH 7

Thu, 21 Jan 2010 12:13:36 GMT

Outer House: Preliminary proof; The pursuer and Defender (the third party was not present or represented) conducted a preliminary proof in respect of their contractual relationship. In particular, the defenders had, over a period of years, provided rivets to the pursuers following the conclusion of multiple contracts of sale for rivets. The issues in dispute before proof were in respect of the defenders' and the pursuers' standard terms incorporated in each individual contracts of sale; whether the individual contracts included implied terms imposed by the Sale of Goods Act 1979 ss 14(2), 14(3) and 13(1).

Education 4 Ayrshire Limited v. South Ayrshire Council [2009] CSOH 146

Thu, 05 Nov 2009 08:26:03 GMT

In December 2006 the pursuers and the defenders entered in to a contract in which the pursuers undertook to carry out "Works" including the design and construction of six schools including Prestwick Academy. The pursuers sub-contracted the Works to a Building Contractor, Carillion. In terms of the contract each phase of the Works had to achieve Service Availability on the Target Service Availability Date, which included three phases in relation to Prestwick Academy. In this action the pursuers averred that there was a delay to the Works at Prestwick Academy as a direct result of the discovery of asbestos which was not revealed by a survey and sought:- (1) declarator that the issue of Acceptance Certificates in relation to Phases 1, 2 and 3 of the Prestwick Academy Project Facility had been delayed by a period of 16 weeks owing to a Works Compensation Event, namely the discovery of Asbestos; (2) declarator that they were entitled to a postponement for 16 weeks of the Target Service Availability Date for Phases 1, 2 and 3 at Prestwick Academy; and (3) payment of £815,792.00 plus VAT and interest. The defenders contended that the pursuers could not claim postponement or payment because they failed to give the required notice or notices in terms of clause 17 of the contract within the required time. At a debate on the defenders' plea-in-law to the relevancy of the pursuers' case it was submitted on behalf of the defenders that because no valid notice was given in terms of clause 17 the pursuers' case in support of their second and third conclusions must fail and should not be remitted to probation. The issue at debate was whether a letter of 2 May 2007, which included the words "...In accordance with Clause 17.1 of the project agreement, we hereby inform you that we anticipate a delay in achieving the Target Service Availability Date in relation to Prestwick Academy..." , was capable of constituting a valid notice for the purposes of clause 17. It was submitted on behalf of the defenders that the letter was insufficient notice of any claim. It was submitted on behalf of the pursuers that the letter was sufficient and to require such wording as required in clause 17 would be unduly formalistic. Here the court considered whether a notice served in accordance with clause 17 had to comply strictly with its terms.

Hardev Singh Purewall and others v. Gurbax Kaur Purewall [2009] CSIH 74

Thu, 08 Oct 2009 08:27:07 GMT

Reclaiming Motion:- In this action the pursuers and respondents' sought certain payments from the defenders and reclaimers which arise out of the dissolution of a partnership in which the parties, together with the reclaimer's late husband were partners. On 29 October 2008, the Lord Ordinary pronounced an interlocutor granting decree against the defender and reclaimer for the sums specified therein together with sums representing contractual and judicial interest and it is against that interlocutor which the reclaimer has reclaimed. The issue here was the the meaning of the expression 'date of determination' as used in clause Ninth (b) of the contract of partnership. It was submitted on behalf of the reclaimers that, in holding the words "dissolution" and "determination" were synonyms, the Lord Ordinary had erred in law by misapplying the principles of contractual interpretation and had erred in his analysis of the partnership agreement. It was submitted that an ordinary and natural meaning should be given to the words used in a contract. If the words "determination" and "dissolution" were not synonyms and did have different meanings then, for the respondents to succeed, it would require the Court to hold that to give the words their ordinary and natural meaning would be to flout business common sense and that something had gone wrong with the language, or the drafting of the contract. It was submitted that the partnership agreement was a formal document and the Court should not readily accept that linguistic mistakes had been made. It was submitted on behalf of the respondents that the Court should refuse the reclaiming motion and adhere to the Lord Ordinary's interlocutor as the Lord Ordinary had held that the words "date of determination" in Clause Ninth (b) meant the date of dissolution of the partnership and that accordingly the first instalment fell due six months thereafter on 31 May 2004 and the Lord Ordinary had rejected the reclaimer's submission that the relevant date was the date of the arbiter's final order. Here the court considered whether the Lord Ordinary had correctly interpreted the expression.

McCalls Limited v Capture Imaging Limited – Aberdeen Sheriff Court, 28 July 2009

Thu, 01 Oct 2009 15:19:25 GMT

The Pursuers claimed damages from the Defenders agruing that they had been induced to enter into contracts for the lease of copying and printing equipment on the basis of negligent misrepresentations made by a director of the Defenders, Mr Y. The Pursuers sold and hired out highland dress and accessories. The Defenders supplied and sold copying, scanning and printing equipment. Mr Y had contacted the Pursuers and had offered to supply them with new and updated copying and printing equipment. The Pursuers used their printer for printing promotional material and colour accuracy was important to them. During discussions, Mr Y made a number of statements about the printing machine he was offering to supply. He suggested that it would produce better quality prints and would far exceed the quality of their current printer. The Pursuers were given samples so that they could compare the print quality of the respective machines. After delivery of the printer, the Pursuers expressed disatisfaction with the print quality. A PBA took place after which the Pursuers submitted that the statements made by Mr Y had induced them to enter into contracts with the Defenders and that Mr Y and the Defenders had owed a duty of care to them. The Defenders were responsible for Mr Y’s negligent misrepresentations. The statements that had been made were false and a loss had been incurred. The Pursuers had had to outsource printing work and hire alternative printing equpment. In making those representations, Mr Y had known that the Pursuers would rely on them for the purpose of entering into the contracts. The Defenders insisted on their second plea in law – that the Pursuers’ averments were irrelevant and lacking in specification - and sought absolvitor.They argued that the Pursuers had not averred the nature of the relationship between the parties that gave rise to a duty of care. The Pursuers’ case could have been brought under Section 10 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 or under delict. As the Pursuers’ claim had not been set out on the basis of Section 10, it had to be viewed as a delictual case. There had been no evidence to support the necessary special relationship between the parties or the special skill or knowledge on the part of Mr Y on the quality of print that would be essential to the success of a delictual case. The Pursuers had to prove that the statements that had been made had been representations of fact and that they had been false. Mr Y’s statements had been expressions of his view on matters like print quality. These had simply been his own opinion and the final judgement had been left to the Pursuers. There had been no evidence to suggest that the statements had been false. The Sheriff considered a number of cases on delictual liability for negligent misrepresentation, including Headley Byrne & Company Limited v Heller & Partners Limited. He had to decide whether Mr Y had made negligent misrepresentations to the Pursuers which had induced them to enter into the contracts.

Albert Bartlett & Sons (Airdrie) Limited v. Gilchrist & Lynn Limited & Atlas Ward Structures Limited & Briggs Amasco Limited [2009] CSOH 125

Wed, 09 Sep 2009 09:27:39 GMT

Proof:- The pursuers process, package and supply potatoes to the food trade and operate from premises in Airdrie. In October 2001, the pursuers invited tenders for the design and construction of a new potato processing and packaging plant in Airdrie. In December 2001, a contract was entered in to between the pursuers and the defenders whereby the defenders were responsible for the design and construction of the new building and by way of sub-contracts the third parties were also involved in the design and construction of the building. During the course of the construction concerns were expressed by the pursuers to the defenders and the others involved regarding water leaking through the roof. The pursuers were assured that there were no problems and any defects would be remedied once the works were completed. The pursuers took possession of the new building on 17 November 2003 and since then there has been widespread water ingress at various points of the roof. In this action the pursuers sought damages from the defenders for the loss and damage which they suffered through the defenders' breach of contract. It was accepted by the defenders that the roof was not watertight and they admitted that they were in breach of contract. Agreement was reached between the defenders and the third parties as to issues of liability, relief and apportionemnt inter se and an interlocutor was pronounced assoilzing the second third party. The only issue at proof between the pursuers, the defenders and the remaining third parties related to the quantification of damages to which the pursuers were entitled. It was the pursuers contention that they were entitled to damages assessed on the basis of an overcladding solution, which would involve draining the skylights in the roof and installing over the existing roof cladding a properly fixed single ply profiled roof sheet. The defenders and the third parties submitted that that was unreasonably expensive and would not resolve the problems of water ingress to the building. It was submitted on behalf of the defenders and third parties that a cheaper and more effective solution would be to apply the Kemperol 2K PUR system to the areas of the roof which leak. The court considered that:- (1) a pursuer who is the victim of a breach of contract cannot recover from the party in breach the cost of reinstatement where such cost is unreasonable and out of all proportion to the benefit that it will achieve, even in a case where the court is satisfied that the pursuer intends to adopt such an expensive scheme if awarded damages on that basis, and (2) the duty to mitigate his loss may require the pursuer to put in hand the cheaper of two alternative schemes. Here the court made an assessment of the competing expert evidence in relation to the roof and the technical merits and demerits of the two solutions under consideration. The court considered the preferable solution having regard to it's technical merits, aesthetics, any diminution of the value of the premises and the costs of the installation to determine the award of damages to the pursuers.

Thomas Park and Another for Partial Recall of Inhibition [2009] CSOH 122

Tue, 25 Aug 2009 20:08:57 GMT

The petitioners are tenants under a long lease of a restaurant in Bothwell. The respondent, as pursuer, raised an action against the petitioners, as defenders, in Hamilton Sheriff Court where they sought payment from the defenders of £204,000. By letters of inhibition registered on 18 September 2007 following registration of a notice of inhibition on 31 August 2007 the respondent inhibited the petitioners on the dependence of the action. Here the petitioners sought recall of the inhibition but only as it related to the restaurant in Bothwell on the basis that:- (1) the missives for the sale of the long lease had been concluded before the inhibition became effective; and (2) if the subjects had been caught by the inhibition they should be released on the ground of oppression. Following debate, on 19 August 2008 Lady Dorrian held that the inhibition became effective from the conclusion of the day on which the notice of inhibition had been registered, namely 31 August 2007. The issue here was whether the missives for the sale of the long lease of the restaurant had been concluded by midnight on 31 August 2007. It was submitted on behalf of the petitioners that missives for the sale of the subjects had been concluded during the course of 31 August 200, that the transaction had not been caught by the inhibition and that it should be partially recalled in terms of the prayer of the petition. It was submitted on behalf of the respondents that in contracts for the transfer of heritable property there was a requirement for writing both before and after the Requirements of Writing (Scotland) Act 1995 and that that Act had not changed the need for delivery of missives. Here the court considered whether fax transmissions of the qualified acceptance and the final acceptance on 31 August 2007 were sufficient for the conclusion of missives on that date.

Bell and Scott LLP v. David Stanley Kane [2009] CSOH 111

Thu, 30 Jul 2009 15:29:36 GMT

Proof before answer:- In terms of a business transfer agreement dated 13 and 27 July 2006 the defender, a partner in the law firm "Clairmonts", sold his interest in that law firm, including his interest in the business as a going concern to the pursuers, another law firm. Subsequently, pursuant to another agreement the defender became a partner with the pursuers. The price for the purchase of the defender’s interest in Clairmonts was £800,000 payable by six instalments the last instalment being payable 30 months after the effective date on 1 February 2009. It was agreed that if the defender retired with effect from a date earlier than 30 months from the effective date, or was in breach of any of the restrictive covenants in clause 12.1.2, he would forfeit his right to any outstanding part of the instalments. On 2 August 2008 the defender gave the pursuers six months notice in writing of his intention to retire as a member of the pursuer which took effect from 1 February 2009, a date 30 months from the effective date after which he joined another firm of solicitors. In this action the pursuers claimed that in January 2009 the defender, whilst still a partner with the pursuers, was in breach of the restrictive covenant in clause 12.1.2. The issue at the proof before answer was whether, prior to leaving the partnership, the defender acted in breach of clause 12.1.2. It was submitted on behalf of the pursuers that, whilst there was no evidence that the defender had breached either limb of clause 12.1.2 by enticement or soliciting, the defender had breached the prohibition on interfering with clients. It was submitted on behalf of the defender that there was no interference of the kind prohibited by the clause. Here the court considered the meaning of the words "interfere with" as referred to in clause 12.1.2 and whether the pursuers had shown that the defender was in breach of that clause.

J.S. Swan (Printing) Limited v. Kall Quik UK Limited [2009] CSOH 99

Wed, 08 Jul 2009 14:30:00 GMT

Debate:- In this action the pursuers sought declarator that the defenders were in material breach of a franchise agreement dated 18 October 2001. The pursuers, a printing company, are registered in Scotland. The defenders, a company who grant franchises to others, are registered and domiciled in England. At debate the question was whether the pursuers had pleaded a relevant case that the court here had jurisdiction in terms of paragraph 3(a) of Schedule 4 to the Civil Jurisdiction and Judgments Act 1982. In the franchise agreement the defenders gave the pursuers certain rights for a period of ten years. Counsel on behalf of the defenders submitted that the pursuers' averments as to the place of performance of the relevant obligations were irrelevant and the action be dismissed as the pursuers had averred no relevant ground of jurisdiction. Counsel on behalf of the pursuers accepted that the obligation founded on had to be performed in a single place but submitted that the issue was how that single place was to be identified. Counsel for the pursuer submitted that it was not necessary for the pursuers to aver an express or implied term that performance was to be in Scotland and it was sufficient that the obligation was capable of being identified with Scotland. Here the court considered whether it should apply Scots law as the governing law in deciding what is the place of performance of the obligation in question and, if so, to ascertain whether Scotland was the place of performance of the obligation or obligations which formed the basis of the claim in the action. Here the court considered whether the pursuers had relevantly averred that the court had jurisdiction on the basis of the place of performance of the contractual obligations on which they founded in their summons.

Baillie Estates Limited v. Du Pont (UK) Limited [2009] CSOH 95

Wed, 01 Jul 2009 18:21:00 GMT

In 2006 the pursuers, who design and manufacture signs in Scotland, purchased from the defenders a printing machine. Since then the pursuers have not been happy with the printing machine's performance and have sought to reject the machine on the ground that it was not of satisfactory quality or fit for purpose under section 14 of the Sale of Goods Act 1979. Here the pursuers sought inter alia declarator that they were entitled to reject the printing machine. The defenders lodged defences in which they averred that they were not subject to the jurisdiction of the court on the basis of Clause 28 of the standard terms of sale which state:- "These conditions shall be subject to and shall be construed in accordance with the Laws of England. The Courts of England shall have exclusive jurisdiction over any dispute which may arise hereunder, unless the parties agree otherwise in writing." Here at a preliminary proof the court considered the circumstances in which the parties entered into the contract of sale to ascertain whether the defender's standard terms had been incorporated into the contract and thus whether the court had jurisdiction to hear the case. Here the court considered, in particular, whether the parties had entered into a binding contract for the supply of the printing machine by 19 November 2006, before Du Pont intimated their standard terms and conditions. If that was indeed the case, then those standard terms would not be incorporated into the contract of sale.

Halifax Life Limited v. DLA Piper Scotland LLP [2009] CSOH 74

Tue, 02 Jun 2009 03:15:00 GMT

On 29 May 2008 the defenders, a limited liability partnership of solicitors, offered by way of a formal letter, to purchase commercial subjects in Glasgow, for £8,800,000, on behalf of a purchaser, who was defined in the offer as "the Members of the 227 Syndicate" but who, it transpired, did not exist on 29 May 2008. Tods Murray LLP, acting on behalf of the pursuers, accepted the offer with an unqualified acceptance. In this action the pursuers sought:- (1) declarator that the defenders were personally liable to implement the contract and damages for breach of contract, and, alternatively, (2) damages for loss caused by negligent misrepresentation. The pursuers' case was based on the contention that the defenders were liable in damages for breach of contract for the loss caused by their failure to purchase the subjects, which the pursuers later sold for a much smaller sum. The defenders submitted that the case pleaded in contract was irrelevant and that the correct remedy was an action for breach of warranty of authority, which was deemed as a delictual case. Here at debate the issue was whether the pursuers had pleaded a relevant case that the defenders were personally liable to implement the contract because they knew of the non-existence of the principal and purported to enter into the contract as agents. Here the court considered whether the defenders incurred personal liability under the contract.

Lonedale Limited and Others v. Scottish Motor Auctions (Holdings) Limited [2009] CSOH 64

Thu, 07 May 2009 08:21:00 GMT

Debate:- On 25 April 2007 the pursuers entered into a Share Purchase Agreement (SPA) with the defenders for the sale of the issued share capital of Scottish Motor Auctions Limited (the Company) to the defenders for £15 million, £14.5 million to be paid in cash on completion and the remaining £500,000 plus interest to be paid into a retention account in the joint names of the parties' solicitors. The SPA provided that prior to completion the sellers should procure the declaration of a dividend by the Company in their favour, in an amount calculated in accordance with a clause in the SPA. The completion dividend would be payable within 10 business days of finalisation of the completion accounts. Completion took place on 25 April 2007 and the Company transferred the sum of £642,000, being the agreed estimate of the completion dividend, to the retention account. The completion accounts were finalised on 31 August 2007, and the completion dividend was ascertained to be £566,681 which amount fell to be paid to the pursuers by 17 September 2007, being the date 10 business days after finalisation of the completion accounts. The purchasers were entitled to deduct from the sums in the retention account the amount of their claims against the sellers under the SPA. The defenders intimated claims against the pursuers and sought payment of those amounts from the retention account. The pursuers submitted that no valid claims had been made by the defenders sufficient to trigger the release of those sums to the defenders and the sums in the retention account should be released to the pursuers. At debate on the pleas-in-law of both parties the issue was whether the claims entitled the defenders to payment from the retention account or whether the pursuers were entitled to the release of the sums to them.

Alexander Inglis & Son Ltd v. Oxenfoord Home Farm (Pathhead) [2009] CSOH NUMBER59

Thu, 30 Apr 2009 10:15:00 GMT

Proof Before Answer:- In this action the pursuers, a company of grain merchants, sought damages from the defenders, a farming company, in respect of the defenders' breach of contract. The defenders denied liability. The issue in this case was whether or not in September 2006, the pursuer, through a director, Mark Paton, agreed to a variation of a wheat supply contract previously entered in to between the parties. It was the defenders' position that the contract had been varied at a meeting, in particular, that the pursuers would not insist on the defenders supplying 400 tonnes of wheat for the year 2007-2008. The pursuers, on the other hand, denied such a meeting taking place, let alone a variation of the terms of the contract. Here the court considered whether such a meeting took place and whether a variation of the contract occurred. In the event that the court held that the defenders had breached their contract with the pursuers damages had been agreed in the sum of £28,443.36 together with interest at 8% per annum from the date of citation until the date of decree and thereafter with interest at the applicable judicial rate.

Cyrus Energy Limited & Xyrex Limited v. Alan Stewart & Patrick McTurk [2009] CSOH 53

Thu, 09 Apr 2009 09:24:00 GMT

On 17 October 2006, the defenders were employed as managing directors of the pursuers, sister companies, respectively and both men entered into a Service Agreement with their respective companies, both of which included a restrictive covenant. On termination of their employment, the defenders agreed:- (1) to a non-solicitation restraint; (2) to a non-trading restraint; and (3) to a world-wide restraint against working in competition with the business of their employers. On 3 and 4 November 2008 the defenders tendered their respective resignations and on 13 February 2009 interim interdict was granted against the defenders, the interlocuters reflecting the terms of the restrictive covenants. In this motion for recall it was submitted on behalf of the defenders that the worldwide restraint went too far, going beyond what was required to protect the legitimate interests of the pursuers and that the balance of convenience favoured the defenders. Counsel for the pursuers submitted that the covenants were valid and should be upheld. Here the court considered whether the interim interdicts should be continued in respect of restraints (1), (2) and (3).

Bell & Scott L.L.P v. David Kaye [2009] CSOH 51

Thu, 09 Apr 2009 09:21:00 GMT

Interim Interdict:- From 1 August 2006 the defender, a solicitor, sold his business to the pursuers, a firm of solicitors and became a member of that firm. On 2 August 2008 the defender gave notice that he would resign as a member of the pursuers with effect from 2 February 2009. Since February 2009 the defender has been a member of a further firm of solicitors. This action arose out of the terms of the Business Transfer Agreement by which the defender sold his business to the pursuers including the right of the purchasers to represent themselves as carrying on business in succession to the vendor and restrictive covenants which covered the behaviour of the defender while he remained a member of the pursuers and also his behaviour when he left the firm. The Agreement provided that the restrictive covenants would not apply if the pursuers failed to pay an instalment of the purchase price timeously and the pursuers had not paid the final instalment of £250,000 which was due on 2 February 2009. The pursuers argue that that involves no failure on their part as they allege that the defender was in breach of his restrictive covenant. In this action the pursuers sought interdict ad interim and the court considered the allegations of the breaches of the two restrictive covenants and whether the pursuers had made out a prima facie case of breach and where the balance of convenience lay.

The Scottish Coal Company Ltd v. Trustees of F.I.M. Timber Growth Fund III [2009] CSOH 30

Thu, 05 Mar 2009 13:45:00 GMT

Debate:- The pursuers and the defenders entered into an agreement in April 2003 which gave the pursuers rights to prospect for coal in an area of land of which the defenders were the successors of the feuars with whom the pursuers had contracted with. In this action the pursuer sought declarator of:- (1) that the coal prospecting agreement was assigned by the feuars to the defenders, (2) that the agreement remained in full force and effect and binding on the pursuers and the defenders and (3) that the "Option Period" as defined in the agreement had not commenced and would not commence until the "Title Dispute Resolution Date" as defined in the agreement was reached. Here at debate the pursuers submitted that they were entitled to decree de plano as the defences were irrelevant. In response the defenders submitted that the pursuers' averments were irrelevant and should be dismissed on the basis that:- (1) the contract had been frustrated by the assignation which had rendered it impossible to perform; (2) on a proper construction of the agreement the option period had expired; and (3) personal bar. Here the court considered the relevancy of the averments in the summons and the defences.

Derek Crighton & Eleanor Crighton v. (First) Catlin (Five) Limited & (Second) Brit Underwriting Limited & (Third) Great Lakes Reinsurance (UK) plc & (Fourth) GE Insurance Solutions & (Fifth) Bestpark International Ltd (formerly Trenwick International Ltd)

Wed, 17 Dec 2008 17:45:00 GMT

Procedure Roll:- In this case the pursuers were a married couple who traded as partners. The first named defenders were the lead syndicate in relation to a policy of insurance which was the subject of dispute and that the second, third, fourth and fifth named defenders were also Lloyds syndicates or representatives of the underwriters of the syndicates which underwrote the policy. In this action the pursuers sought declarator that the defenders were obliged to indemnify the pursuers for their respective shares of losses arising from floods in November 2002 of their premises in Elgin in terms of a policy of Insurance issued by or through Lloyds Broker Giles Insurance Brokers on 20 September 2002. It was submitted on behalf of the defenders that the pursuers' case was irrelevant because there were no averments which would allow the pursuers to lead evidence that what was done fell within the obvious and clear ostensible authority of Giles. Counsel for the pursuers sought declarator in terms of the first conclusion and invited the court to restrict the proof to quantum. Here the court considered the relevancy of the pursuers' pleadings in light of the contract in force between the parties.

Stefan Blacha v. The Bank of Scotland plc [2008] CSOH 173

Wed, 17 Dec 2008 17:44:00 GMT

Debate:- The pursuer claimed that sums debited from his account on the instructions of a firm of solicitors in Manchester, Davis Blank Furniss, were made without his authority and the sums debited from the account included a sum at credit of the account in the sum of £350,000. They also included sums paid under a loan facility. The defenders claimed that they had authority and that this was shown from the face of the pursuer's pleadings and at debate on the defenders' general plea to the relevancy it was submitted by them that the case was irrelevant and should be dismissed. Here the court considered whether the authority given in the facility letter was sufficient to cover the funds at credit of the account as well as any funds drawn down on the facility and whether the pursuer's case was irrelevant.

O’Farrell v Moroney – Edinburgh Sheriff Court, 20 October 2008

Thu, 04 Dec 2008 15:53:00 GMT

The Pursuer bought a peregrine falcon from the Defender for £900. The falcon died 25 days later and the Pursuer raised a small claim action for the purchase price. The Pursuer, an experienced falconer, argued that he had trained and developed the bird reasonably but it had died after a short time and this must have been due to an underlying illness or condition. In terms of Section 48(a) of the Sale of Goods Act 1979, he was entitled to rescind the contract as the falcon did not conform to the contract. In terms of that s.48(a), a purchaser in a consumer contract can seek a replacement or rescind the contract if the goods do not conform to the contract at the time of purchase. That right can be founded on if, at any time within 6 months of the goods being delivered, they are found not to conform. The Defender argued that the falcon had been healthy when it was sold to the Pursuer at 8 weeks old. He had guaranteed to replace the falcon if it had become seriously ill or died within 7 days of purchase. That was reasonable as this was the likely incubation period of any illness which might be building up at the time of sale. The Defender contended that it was the way in which the Pursuer had trained the falcon that had led to its death as it had been put under stress as a result of a rigorous training regime. That particular type of falcon was bred in such a way as to lead to a greater susceptibility to stress induced illness. Sheriff concluded that Sections 48 (a) to (f) of the 1979 Act applied in this case. Having heard evidence, the Sheriff accepted the Defender’s position and found that the Pursuer have over extended the falcon on its final flight and this had proved too much for the bird. The Pursuer has not proved that the falcon did not conform at the time of delivery and his claim was unsuccessful.

Khalid Parvaiz v. Thresher Wines Acquisitions Limited [2008] CSOH 160

Tue, 25 Nov 2008 20:50:00 GMT

Procedure Roll:- In this action the pursuer concluded for:- (1) production and reduction of a Minute of Preference and Enactment of Sale dated 29 March 2007 relative to a shop at 9 Hyndland Street, Glasgow; and (2) for the repayment by the defender, the heritable proprietor of 9 Hyndland Street, to the pursuer of the sum of £26, 200 with interest. At a procedure roll debate a motion on behalf of the defenders was made for dismissal of the action on the ground that the pursuer's averments were irrelevant and lacking in specification. Counsel on behalf of the pursuer invited the court to allow a proof before answer. It was submitted on behalf of the defender that the pursuer had purchased the particular title at an auction sale. The nature of an auction was that the item was exposed and once a bid was accepted the successful bidder goes away with the item, the auctioneer gives no guarantee. Now the pursuer sought reduction and repayment of the deposit on the basis that the defender had no title to the toilet area which had been occupied by it. It was submitted on behalf of the defenders that the situation was one of caveat emptor. It was submitted on behalf of the pursuer that it was a high test to be met if a case was to be dismissed by reason of irrelevancy.

Hardev Singh Purewall & Kirpal Kau Purewall & Belhar Singh Sanghera & Surinder Kaur Sanghera v. Gurbar Kaur Purewall [2008] CSOH 147

Wed, 22 Oct 2008 09:37:00 GMT

Debate:- Prior to 30 November 2003 the pursuers and the defender, together with the defender's late husband, were in partnership as restaurateurs of an Indian restaurant and was governed by a contract of partnership dated 4 January 1991 and registered in the Books of Council and Session on 14 January 1991. Following the defender's husband’s death in 2002 the pursuers served a notice of dissolution of partnership,the effect of which was to dissolve the partnership as at 30 November 2003. The defender carried on the business on her own. After dissolution of the partnership, the partnership accountant prepared a draft balance sheet as at 30 November 2003, the date of dissolution, and profit and loss account. The defender thereafter validly objected to the accounts and an arbiter heard parties at a proof before answer, and by note dated 3 March 2008 rejected the defender's objections to the accounts and on 27 March 2008 issued a final order which held that the final balance sheet as at 30 November 2003 as prepared by the partnership accountants was correct and final. In the present action the pursuers sought payment of those sums together with interest. The defender accepted that the sums standing at the pursuers' individual capital accounts were due by her, however, she contended that her obligation to pay those sums crystallized only when they were finally determined. At debate counsel for the defender submitted that the expression "date of determination" was crucial in assessing when the sums fell to be paid and the interest to be paid. On behalf of the pursuers it was submitted that that the expression "date of determination" should be construed as referring to the date of dissolution of the partnership rather than the date of the arbiter's award. Here the court considered the meaning of the expression "date of determination" as used in clause Ninth (b) of the contract of partnership.

Global Resources Group Limited v. Alex Mackay [2008] CSOH 148

Wed, 22 Oct 2008 09:36:00 GMT

Debate:- In this action the pursuer sought damages from the defender alleging that the defender committed the delict of inducing a breach of contract. On behalf of the defenders it was submitted that the action should be dismissed as the pursuers had not relevantly averred a delictual case of inducing breach of contract as a person only commits such a delict when he induces or procures another person to break his contract. It was submitted that there were no averments that the defender had actively associated with GDP by persuading them to break their contract with the pursuers or at least by facilitating active steps on the part of GDP to break their contract. It was submitted on behalf of the pursuers that the delict of inducing breach of contract was committed where a defender caused another to break his contract in the knowledge of the terms of that contract which were being broken by his conduct and there was no rule that only inducement in the sense of deliberate persuasion of another to act in breach of his contract would suffice. Here the court referred to the following example to consider whether the pursuers had pled a relevant case:- “A commits the delict or tort of inducing a breach of contract where B and C are contracting parties and A, knowing of the terms of their contract and without lawful justification, induces B to break that contract. When that occurs, B is liable to C for breach of contract and A is liable to C for the delict of inducing that breach.”

Nigel Henderson & Norma Henderson v. Royal Bank of Scotland plc [2008] CSOH 146

Wed, 22 Oct 2008 09:34:00 GMT

Debate:- In this action the pursuers sought damages for alleged negligent misrepresentation and breach of contract on the part of the defenders during the course of various property transactions and loans in the 1990s. An earlier action arising out of the same circumstances, but on the basis of different pleadings to the present action, was dismissed in October 2006. At debate senior counsel for the defenders challenged the claim on three grounds:- (1) that the loss claimed was outside the scope of the bank's duty of care; (2) that the pursuers had failed to specify their loss; and (3) there was no warrant to imply a term into the Loan agreements. On behalf of the pursuers senior counsel argued that the claim was sufficiently relevant and specific to justify a proof before answer. Here the court considered, in relation to the provision of incorrect information, the loss for which a person is answerable. The court further considered whether the pursuers averments regarding loss were relevant and whether in providing inaccurate breakage costs for repaying the loans the defenders were in material breach of contract.

Norwest Holst Limited v. Carfin Developments Limited [2008] CSOH 138

Wed, 24 Sep 2008 18:00:00 GMT

Debate:- In November 2006 the pursuers, a firm of building contractors, entered into a contract with the defenders for the construction of works in a site at New Stevenston Road, Carfin. The defenders were the employers in terms of the contract and appointed the Mason Evans Partnership as the Engineer under the contract. In this action the pursuers sought payment of sums owing plus interest. The pursuers claimed payment of an amout of £1,136,525, as certified by the Engineer, less payments previously made of £919,665. The balance concluded for was £216,860 and the pursuers sought summary decree for that sum. The defenders disputed the pursuers' case in particular the certification issued by the Engineer. It was submitted on behalf of the defenders that when there is a binding reference to arbitration the proper course is to sist the cause until it has been settled by arbitration and the defender has such a right whenever an action has been brought by someone who is party to an arbitration agreement in respect of the subject of the action. Here the court considered whether the defenders had raised any points which could be said to raise a real dispute or difference so that the cause should be sisted for arbitration.

Colin Fraser (A.P.) v. The Professional Golfers' Association Limited [2008] CSIH 53

Wed, 17 Sep 2008 05:13:00 GMT

Reclaiming Motion:- In this action the appellant sought damages from the respondents for a breach of contract. The appellant enrolled with the respondents to become a professional golfer and attended and satisfactorily completed training courses and became entitled to sit the respondents' final examination. He was required as part of that final examination to sit a practical test. He passed all parts of this examination with the exception of the part relating to the alteration and repair of golf clubs. He accordingly re-sat that part of the examination and failed it again. Thereafter, he re-sat the practical examination for the third and final time permitted under the Regulations and on 29 November 1995 failed again. This meant that membership of the respondents was permanently unavailable to him. The appellant initially sought a judicial review of the respondents' decision to fail him, but was unsuccessful. In 2000 he raised the present action that, in failing him, the respondents were in breach of an implied term of the contract between them. The Lord Ordinary considered three areas in respect of which the appellant averred that the criticism of him was unjustified. It was submitted here on behalf of the appellant that the Lord Ordinary should have found that the appellant should have been given 26 marks out of the available 30, or at least 21, if the respondents' examiners had assessed him in accordance with the contractual term, and he should therefore have found that the appellant would have passed. Here the court considered firstly whether it could deal with the refined basis of the reclaiming motion and, if so, whether in light of the findings made by the Lord Ordinary it could be said that a fair and reasonable examiner would have awarded the appellant the 26 marks claimed, or at least 21.

Thomas Park and Another for Partial Recall Inhibition [2008] CSOH 121

Tue, 19 Aug 2008 18:16:00 GMT

Petition for Partial Recall of Inhibition:- The petitioners were spouses who formally traded from a restaurant in Bothwell which they occupied under a long lease. In 2006 another couple obtained an interest in the business and entered into a partnership with the petitioners. Later in the same year an action was raised by the respondent in Hamilton Sheriff Court against all four partners seeking payment of a sum of £204,000. The petitioners were inhibited by the respondents by letters of inhibition registered on 18 September 2007 following registration of a notice of inhibition on 31 August 2007. It was the petitioners position that they entered into missives dated 7, 10 and 31 August 2007 for the sale of the lease. Here the petitioners sought partial recall of the inhibition in so far as it related to the subjects of the lease as the inhibition became effective on 31 August 2007 as a result of the notice of inhibition and because the missives were not concluded before that date, the inhibition was effective to prevent implement of the missives. The question before the court was when the inhibition took effect. The general position is that where missives are concluded before the date on which an inhibition becomes effective, they will not be struck at by the inhibition. Here the court considered whether the minute of sale was a genuine transaction or one which had been manufactured to defeat the fair operation of the inhibition.

Royal Insurance UK Limited v. Amec Construction Scotland Ltd and Others [2008] CSOH 107

Wed, 30 Jul 2008 10:43:00 GMT

Amendment Procedure:- The pursuers raised the action in September 2002, and was founded upon alleged breaches of collateral undertakings which the respective defenders granted in the pursuers' favour relative to the conduct of the reconstruction works. Further, the pursuers asserted a contractual right, by virtue of the same collateral undertakings, to be indemnified against the losses which they sustained. Previously, in November 2007, the court rejected the defenders' challenge to the pursuers' title and interest to pursue the action notwithstanding the absence of any reference in the instance to the trustee capacity in which their claim was said to be advanced. However, the court went on to hold that the court could no ignore the pursuers' omission to design themselves properly in the instance and rendered the summons defective in form and thereby incompetent. Here the pursuers sought to amend the Record by adding at the end of their own instance the words "... as trustees for Royal Insurance plc conform to an Agreement between Royal Insurance plc and the pursuers dated 31 December 1992." It was submitted on their behalf that these additional words supplemented their designation, in curing a technical want of form, and there could be no valid bar to amendment along such lines. It contrast it was submitted that the pursuers' motion to amend should be refused outright and, further, that the action should be dismissed as both incompetent and out of time, the proposed amendment being an illegitimate attempt to cure, if not a fundamental lack of title or interest to sue, then a radical incompetence having substantial legal consequences. Further, any contractual or other obligation on their part towards the pursuers as trustees had been extinguished by the operation of the five-year prescription under Sections 6 and 11 of the Prescription and Limitation (Scotland) Act 1973. Here the court considered whether the pursuers' claim had prescribed and, if so, whether the court should exercise it's discretion in the pursuers' favour and allow the amendment.

K.K.A. Limited v MacDonald Hotels Ltd [2008] CSOH 108

Wed, 30 Jul 2008 10:21:00 GMT

Proof:- In this action the pursuers sought to recover architects fees from the defenders in relation to a hotel development at a golf and country club in Cheshire. Around 1994, the pursuers, a firm of architects began carrying out work for the defenders, a hospitality company which owns and develops hotels. Evidence was led on behalf of both parties. The pursuers' claimed that they were entitled to the sum sued for as being fees due under the normal percentage fee arrangement that operated between parties at planning determination stage. The defenders contended that the pursuers had failed to establish either what the normal arrangement was or that it applied to the particular development. Here the court considered what the terms of the contract, in relation to professional fees due, were. In particular, whether or not any departure from the normal fee arrangement was agreed between the parties, having regard to a previous course of consistent conduct between the parties.

Richard Durkin v DSG Retail Limited & HFC Bank plc, Aberdeen Sheriff Court, 26 March 2008

Wed, 14 May 2008 17:09:00 GMT

Contract of Sale and Consumer Credit Contract - whether rescinded – measure of damages

The Pursuer purchased a laptop computer from the First Defenders’ retail outlet, PC World, on the understanding that he could return it if it did not have an internal modem. He paid £50 and signed a credit agreement with the Second Defenders. The laptop did not have an internal modem but PC World refused to accept the return of the computer and did not take any steps to repay the Pursuer or to cancel the credit agreement. The Pursuer left the laptop in the shop and made no payments to the Second Defenders. The Pursuer advised the Second Defenders that he was terminating the credit contract. The Pursuer sought a Declarator that he was entitled to rescind, and had rescinded, both the contract of sale and the consumer credit agreement. He also sought damages. The Pursuer had funded his lifestyle by making use of zero percent interest free credit on transferred balances on credit cards by transferring the balance due on his credit card to another credit card on a regular basis. As the Pursuer had made no payments to the Second Defenders, they arranged for his name to be placed on a credit register. As a result, he was unable to open new accounts with credit card companies and other lending institutions. He has to pay a significant amount of interest over the 4½ year period of the dispute. The Sheriff held that it had been a material term of the contract between the Pursuer and the First Defenders that the laptop should have an inbuilt modem. As it did not, the First Defenders were in material breach of that contract and the Pursuer was entitled to reject the computer, to treat the contract as repudiated and to rescind the contract. The contract between the Pursuer and the Second Defenders was a debtor, creditor supplier agreement in terms of Section 12(C) of the Consumer Credit Act 1974. As the First Defenders were in material breach of their contract with the Pursuer, he was not obliged to make payments under the contract with the Second Defenders and was entitled to rescind that contract by virtue of Section 75(1) of the 1974 Act. The Second Defenders had negligently allowed misrepresentation to be made, namely that the Pursuer was in default under a credit agreement. They had taken no steps to withdraw this, despite the Pursuer’s repeated requests. The Pursuer’s loss had resulted from the Second Defenders’ fault and breach of duty. There were three elements to the Pursuer’s claim for damages – his loss of zero interest credit card use; the loss of his proposed purchase of a house in Spain with the capital gain that would have given him; and general injury to his credit.

Forster v Ferguson & Forster & Others – Glasgow Sheriff Court, 27 February 2008

Wed, 30 Apr 2008 18:19:00 GMT

Contract - Partnership Agreement- Mutuality of Contract - Retention of performance on basis of Pursuer's breach of fiduciary duty

The Pursuer was a former partner in a firm of Stranraer solicitors. He had acted fraudulently when dealing with clients. He accepted that he was in breach of the fiduciary duty he owed to his partners and, therefore, in breach of the partnership agreement. He raised an action in the Commercial Court against the firm and his former partners for payment of a pension. The Defenders refused to make payment and, among other arguments, relied on the principle of mutuality of contract. At first instance, the Defenders were successful. The Pursuer appealed. Having considered the terms of the partnership agreement, the Sheriff Principal allowed the appeal. He considered that he was bound by the decisions in cases of Bank of East Asia 1997 SLT 1213 and Macari v Celtic Football & Athletic Club 1999 SC 628. In essence the question to be considered was "was the contractual obligation undertaken by the Defenders to pay to the Pursuer a pension, the counterpart of the Pursuer's obligation not to defraud clients and not to breach the fiduciary duty he owed to his partners?". The Sheriff Principal concluded that retention of performance of an obligation due under the contract was not an appropriate defence in the particular circumstances of this case. The case continued on the basis of other arguments put forward by the Defenders.

William Stewart & Jemina Stewart v. Pure Limited [2008] CSOH 49

Thu, 27 Mar 2008 11:43:00 GMT

Summary Decree - Contract :- In this action the pursuers sought damages for a breach of contract by the defenders. The pursuers, as travel agents, were approached by 189 clients who were to take part in the island games in Rhodes, Greece. The pursuers approached the defenders, who were aircraft brokers, to provide aircraft for the outward flight from Scotland to Rhodes and the return flight to Scotland and by exchange of emails in January 2007, an agreement was reached between the pursuers and the defenders. The outbound flight took place, however, the defenders failed to provide an aircraft for the return flight and in consequence, the pursuers had to make alternative transportation arrangements for their clients to return home and the pursuers claimed £55,893.00 as damages from the defenders for their breach of contract, for the costs of obtaining an alternative aircraft and one nights accomodation for the passengers on Rhodes. Here the pursuers sought summary decree in terms of Rule of Court 21.2. The court considered whether it was satisfied that there was no defence to the action disclosed in the defences and that on the available material the defender was bound to fail and there was nothing of relevance to be decided at proof. The defenders raised the question of causation and contributory negligence in that the pursuers failed to confirm the booking for the return flight in accordance with an implied term of such contracts and by failing to confirm with the defenders that a return flight had been booked, the pursuers failed to provide accurate information to their clients to allow them to make an informed judgment in their choice of travel arrangements. Here the court considered whether to grant the motion for summary decree.

Supersave Mini Market & Others v. Walters Holland (Life and Pensions) Limited & Another [2008] CSOH 48

Thu, 27 Mar 2008 11:42:00 GMT

Procedure Roll - Contract:- In this action the pursuers were property investors, the first defenders were insurance brokers and the second defender was a director and employee of the first defenders. The pursuers owned a block of property in Wishaw and insurance of the property was arranged through the defenders. The premises were affected by fires, on 11 September 2002 , 28 November 2002 and 10 December 2002. Here the pursuers sought to recover from the defenders the losses they suffered by reason of the fact that the building was uninsured and made a case in fault and breach of contract against the first defender on the basis that:- (1) no reasonably competent insurance broker would have failed to disclose to the pursuers all information they received pertinent to the insurance; (2) no such broker would have failed to obtain insurance for the property; (3) no such broker would have failed to advise the pursuers as soon as reasonably practicable that the property was uninsured; and (4) any such broker would have been aware that the fact that the flats formed part of a property in respect of which insurers had already declined cover would be a material fact to the pursuers and no such broker would have failed to disclose that fact to the insurers. The case against the second defenders was based on fraud on the basis that he falsely and misleadingly advised the pursuers that the whole property was insured when he knew this not to be the case. Here the case called on the defenders' preliminary pleas on the pursuers' pleadings. For the first defenders it was submitted that the averments were insufficient to establish a case against him of non disclosure regarding the flats and the averments were not sufficient to enable the pursuers to prove that the first defender knew the flats were the same as those which had previously formed part of the Stag Hotel. For the second defender, it was averred that there were insufficient averments of fraud in relation to the flats. Here the court considered whether the averments in relation to non-disclosure and fraud were sufficient.

Ronald Evan Wilson v. Dunbar Bank plc [2008] CSIH 27

Thu, 27 Mar 2008 11:41:00 GMT

Reclaiming Motion - Contract:- The pursuer built a block of flats in 1995 with the assistance of borrowings obtained from the defenders, which were secured over the new development. The pursuer was unable to repay the borrowings and the defenders called up their security, and took possession of the subjects in September 1996. The subjects were thereafter sold, however, the pursuer was dissatisfied with the price obtained and here the pursuer sought damages from the defenders on the basis that they failed to sell the subjects for the best price that could reasonably have been obtained, contrary to their duty in delict and under section 25 of the Conveyancing and Feudal Reform (Scotland) Act 1970. At first instance a judge held that the development had been sold as a whole to an investor, without any meaningful attempt to sell the individual flats on the residential market, where a higher price would have been expected to be achieved and awarded damages to the pursuer. Here the defenders appealed, not against the judge's decision 's that the defenders failed to perform the duties in question, but, rather, that he erred in his assessment of damages and interest. Here the court considered whether the judge's approach to the quantification of damages and the calculation of interest was flawed.

Anne and Eddie Strachan v Highlands Joinery Products Limited – Inverness Sheriff Court, 29 February 2008

Wed, 26 Mar 2008 11:58:00 GMT

Appeal against Sheriff's decision to allow PBA - alleged breach of contract - relevancy and specification - averments re loss of profits from business

The Pursuers/Respondents contracted with the Defenders/Appellants for the supply of windows and doors for their property. They claimed that the windows and doors were not of satisfactory quality, in breach of an implied term of the contract in terms of Section 14(2) of the Sale of Goods Act 1979 and that, as a result, they had sustained various losses, including loss of profits from a business which they had intended to run from the property. The Defenders challenged the relevancy and specification of the Pursuers’ pleadings and, following a Debate, the Sheriff allowed a Proof Before Answer. The Defenders appealed, arguing that the Sheriff had erred in law in allowing a Proof on the Pursuers’ averments in support of their claim for loss of profit. The Pursuers claimed that they had purchased the property so that they could live there and operate a business from the property. They averred that the Defenders had been aware of their intention to operate a business from the property. Section 53(A) of the Sale of Goods Act 1979 deals with the measure of damages for a seller’s breach of contract and Section 54 indicates that nothing in the Act affects the right of the buyer to recover interest or special damages in any case where, by law, interest or special damages may be recoverable. These sections open up a claim for damages under the rules in Hadley v Baxendale 1854 9 Ex 341. The crucial question was whether, if it was proved that the Defenders knew that the Pursuers intended to run a business from the property, this would be enough to support a finding that the Defenders should have realised that, if the windows and doors were not of satisfactory quality, the property would not be wind and water tight and would be unfit for use by the Pursuers for business activities and, as a result, they would suffer a loss of profits. The Sheriff Principal concluded that the Pursuers’ averments, if proved, would be sufficient to support their claim for loss of profits and refused the appeal.

Scottish and Southern Energy plc v. Lerwick Engineering and Fabrication Limited [2008] CSOH 41

Wed, 12 Mar 2008 11:16:00 GMT

Procedure Roll:- The pursuers entered into a contract with the defenders in terms of which the defenders carried out work on boilers at their premises. As part of the work the defenders carried out work on a boiler and a fire thereafter occurred. It was averred that the pursuers suffered loss and damage and they claimed from the defenders under and in terms of the contract between the parties. At procedure roll counsel for the pursuers invited the court to to grant decree de plano and restrict inquiry to quantum. It was submitted that on the basis of the admitted facts, the contractual obligation to indemnify arose and no proof in respect of that was required as the terms of the contract were admitted. Counsel for the defenders sought dismissal of the action, failing which a proof before answer on restricted averments. It was submitted on behalf of the defenders that the principle was that a party cannot claim indemnity for losses suffered through negligence of that party unless either the indemnity expressly provides for recovery of such losses or there is no other loss that the clause might relate to. Clause 13(ii) of the contract provided that the defenders shall indemnify the pursuers against "loss or damage to property of the pursuers... howsoever caused...by any of the employees, servants, agents or sub-contractors of the defenders while on the pursuers' premises in performance of this Order". Here the pursuers were seeking an indemnity in respect of loss and damage to their property caused by the defenders' servants.

Knowles Food Services Limited v. CGU Insurance plc [2008] CSIH 20

Wed, 05 Mar 2008 11:33:00 GMT

Appeal from Sheriff Court:- This was an appeal from the Sheriff at Aberdeen in relation to the construction of an insurance policy offering cover to the reclaimers in respect of premises they owned in Aberdeen. The pursuers' claims were dismissed by the Sheriff. The relevant damage was cracking to a supporting beam caused by vibration coming from building operations nearby. The pursuers' claim was purely for the cost of remedial work to the beam. It was submitted on behalf of the pursuers that the sheriff had misconstrued the exception by interpreting the words "own collapse or cracking" as meaning collapse or cracking of the building itself, thus, on his interpretation, excluding cover under Exception E and there was no need to proceed to the defined contingencies which modified the exceptions in exception E which has been quoted. It was submitted on behalf of the defenders that the sheriff had reached the right conclusion by reason of the fact that the policy's terms had to be looked at as a whole and the proper construction excluded, under Exception E, cracking of the building itself and thereafter extended cover only if the circumstances of the particular claim fell within the defined contingencies. Here the court considered whether the construction of the insurance policy that was favoured by the Sheriff was correct.

The Aberdeenshire Council v Bruce Plant Limited – Banff Sheriff Court, 8th February 2008

Thu, 21 Feb 2008 21:47:00 GMT

Appeal – Action for Payment under Contract – Whether Obligation had been extinguished by Prescription – Sections 6(1) and 10(1) of the Prescription & Limited (Scotland) Act 1973.

The Pursuers/ Appellants raised an action for payment against the Defenders/Respondents in October 2006. Following a Diet of Debate, the action was dismissed on the basis that the Defenders’ obligation to make payment to the Pursuers had been extinguished by prescription in terms of Section 6(1) of the 1973 Act. The Pursuers appealed against the Sheriff's decision. The material facts in relation to the issue of prescription were not in dispute. The Pursuers had carried out various works as sub-contractors to the Defenders, who were the main contractors in a contract with SH Ltd. It was agreed that the Defenders’ obligation to make payment to the Pursuers for those works had become enforceable in September 1997. There had been a dispute between the Defenders and SH Ltd over payments due by SH Limited to the Defenders in terms of the main contract and this had led to court proceedings. SH Ltd had counterclaimed and one element in the counterclaim related to the works carried out by the Pursuers as sub-contractors. It appeared that, in light of this, the Defenders disputed the amounts due in terms of invoices raised by the Pursuers. It was accepted that the Defenders' obligation to the Pursuers had been extinguished unless the terms of correspondence between representatives of the parties had constituted relevant acknowledgements within the meaning of section 10(1)(b) of the 1976 Act. It was agreed that Section 10(1)(b) required that there should have been an admission in writing by or on behalf of the debtor and that this must have been unequivocal. It was also agreed that, in construing the letters, it was legitimate to consider them in the context of prior correspondence between the parties and that it was enough that the debtor had acknowledged that the obligation still subsisted in principle, even if he did not acknowledge that a specific sum was due. Having considered the terms of the relevant correspondence, the Sheriff Principal decided that letters sent by the Pursuers’ representative satisfied the criteria set out in Section 10(1)(b) and that there had been a relevant acknowledgement of the Defenders’ obligation to the Pursuers in 2001 and 2003. The letters constituted unequivocal written admissions, clearly acknowledging that the Defenders’ obligation to the Pursuers still subsisted. The appeal was upheld and the case remitted to the Sheriff for further procedure.

Tawne Overseas Holdings Limited v. The Firm of Newmilne Farms & Others [2008] CSOH 12

Thu, 31 Jan 2008 07:46:00 GMT

Proof:- In this case the pursuers owned a farm in Perthshire together with shooting rights and an adjacent house. In 1998, the first defenders leased the farm and the shootings, and the second and third defenders leased the house. The pursuers purchased the farm and the house from the second and third defenders on a sale and leaseback arrangement, however, the pursuers experienced difficulties in obtaining the rent from them. Due to business difficulties the defenders sought a reduction of the rent. To enable mortgage payments to be maintained the pursuers decided to try to achieve an arrangement which would ensure that rent was coming in on a regular basis and the parties agreed to a reduction in the rent payable under the leases to £20,000 per annum for the house lease, and £65,000 per annum for the farm lease, payable quarterly in advance from 28 November 2000. The problems continued resulting in the present action. In this action the pursuers sought:- (1) declarator that the house lease has been irritated because of lateness in the payment of rent, and for removal of the defenders from the subjects; (2) an action for payment of outstanding rental in respect of the house lease; (3) an action seeking declarator of irritancy and removing in respect of the farm lease; and (4) a payment action in respect of the farm lease. Here the case proceeded to prof in respect of these actions.

Pine Energy Consultants Ltd –v- Talisman Energy (UK) Limited 2008 CSOH 10

Thu, 24 Jan 2008 14:42:00 GMT

Debate - In this action the pursuers were seeking: 1. For declarator that the pursuers and defenders were in partnership. 2. For count and reckoning by the defenders with the pursuers for the whole and for payment by the defenders to the pursuers of the balance found to be due. 3. Failing an accounting, for payment by the defenders to the pursuers of an overriding royalty. 4. Alternatively (a) to find and declare that the defenders have been unjustly enriched and (b) for payment by the defenders to the pursuer (sic)of the sum of TWENTY FIVE MILLION POUNDS (£25,000,000) STERLING with interest and expenses. At this time the Defenders were seeking to have their general plea to the relevancy and specification of the pursuers' averments upheld and have the action dismissed.

Wyman-Gordon Limited v. Proclad International Limited (no. 2) [2007] CSOH 209

Thu, 10 Jan 2008 17:35:00 GMT

This case related to the pursuers seeking payment of the unpaid price of goods sold and supplied by them to the defenders and for damages for breach of contract. The defenders had a counterclaim for damages for breach of contract by the pursuers. Following the leading of evidence at a preliminary proof, at which all of the individuals who were involved with the parties' contract at management level gave evidence, Lord Drummond Young was invited to make certain findings as to the terms of the parties' contract, and to express a concluded view on the question of whether the defenders had waived any right to rely on one of the contractual terms that were in dispute.

Scott Greck v. Henderson Asia Pacific Equity Partners (FP} LP+ Henderson Equity Partners (GP) Limited +Roger Greville [2008] CSOH 2

Thu, 10 Jan 2008 14:29:00 GMT

In this action, the pursuer sought declarator that he was a "Good Leaver" in terms of a Limited Partnership Agreement between himself, the second defender and others. The second defender as the General Partner in the Limited Partnership established by The Limited Partnership Agreement had declared the pursuer to be a "Bad Leaver". The pursuer's status as a "Good" or "Bad" Leaver would have consequences in terms of his entitlement to "carried interest" in the assets of the Limited Partnership. The court considered a number of issues including whether the pursuer was a Bad Leaver as defined in The Limited Partnership Agreement or if he was automatically a “good leaver”, and whether the discretion should have been exercised in the pursuer's favour.

Seabourne Developments Ltd v. The Shiprow Development Co Ltd [2007] CSIH 90

Thu, 13 Dec 2007 16:48:00 GMT

Appeal from the Sheriff Court:- In July 2004, the appellants sold a cinema multiplex and two commercial units in Aberdeen, to the respondents for over £11 million. The appellants did not transfer the relevant funds in terms of the obligations in the missives and in 2005 the respondents raised an action in the sheriff court in Aberdeen, seeking payment of certain specific sums in implement of their obligations. The appellants argued that information necessary for the calculation had not been provided to them and they contended that the action should go no further until the figures were available. The sheriff granted decree for certain sums and the appellants then appealed the sheriff's interlocutor of 8 September 2006. In this appeal from the sheriff court it was submitted for the appellants that they had been unable to recognise, understand, or accept the figures put forward in the respondents' pleadings and productions and, whilst it was not the appellants' position that the respondents' case was irrelevant, the manner in which the sums due was quantified was disputed. It was further submitted that having chosen an action for payment of specific sums rather than a count, reckoning and payment, it was for the respondents to aver and prove how those sums were calculated and the respondents had failed to do so here. It was submitted on behalf of the respondents that the defences were irrelevant, and the granting of decree de plano by the sheriff was appropriate.

William Lippe Architects Limited v. James Innes [2007] CSIH 84

Tue, 20 Nov 2007 19:07:00 GMT

Contract - Reclaiming Motion:- Between March 2000 and June 2004, the firm carried out architectural services for the respondent in relation to the intended development of part of the respondent's property in Inverurie. On 6 July 2005, the reclaimers raised two invoices against the respondent for work carried out to the sum of £42,548.82. On 30 November 2006, the Lord Ordinary repelled the first plea-in-law of the reclaimers, sustained the respondent's second plea in law and assoilzied the respondent from the conclusion of the summons as the court considered that consensus in idem had not been established between the parties as to remuneration. It was against that decision that the reclaimers reclaimed here. The key issue was whether a binding agreement had been reached between Mr. Lippe, on behalf of the former firm, and the respondent for the payment of remuneration by the respondent for architectural services provided on a "no win no fee" basis.

Marjandi Limited v Bon Accord Glass Limited – Aberdeen Sheriff Court, 15 October 2007

Thu, 15 Nov 2007 20:42:00 GMT

Action for Payment - The Commercial Agents (Council Directive) Regulations 1993 - Definition of Commercial Agent
The Pursuers were sales agents for the Defenders and negotiated contracts with customers on the Defenders' behalf for the erection of conservatories and extensions. There was no written contract between the parties. In a commercial action, the Pursuers sought a number of payments under the Commercial Agents (Council Directive) Regulations 1993, together with an order for the provision of information. In determining whether the Pursuers were commercial agents to whom the Regulations applied, the Sheriff had to consider whether the contracts which the Pursuers negotiated the Defenders' behalf were contracts for the sale and purchase of goods. The Sheriff held that each contract was, in fact, a single contract for the hire of works, rather than for the sale of goods and, therefore, not a contract to which the Regulations applied. The Sheriff also looked at whether the Pursuers’ activities as agents were to be considered secondary, in which case the Regulations would not apply. Having considered the relationship between the Pursuers and the Defenders, and the guidance given in the Schedule to the Regulations, the Sheriff concluded that the activities of the Pursuers as agents could not be considered secondary.

City Wall Properties (Scotland) Limited v. Pearl Assurance plc [2007] CSIH 79

Tue, 06 Nov 2007 19:11:00 GMT

Commercial Lease - Reclaiming Motion:- This appeal related to a dispute between the landlords (pursuers and reclaimers) and the tenants (defenders and respondents) as to the proper construction of the terms of the rent review clause. As the 3 yearly rent review approached the parties found themselves in disagreement as to the proper construction of the rent review clause (clause 3), and the present action was raised in December 2002. In it the pursuers sought declarator supporting their construction of the rent review provision. After sundry procedure following a proof before answer the Lord Ordinary pronounced an interlocutor dated 25 October 2005 assoilzieing the defenders from the pursuers' conclusion for declarator and at the same time dismissing a counter-claim. Here the pursuers appealled against that interlocutor. The primary issue raised in the reclaiming motion was a short question of construction of a clause in a commercial contract. The particular subject of the dispute was the opening words of clause 3 that stated:- "The rent so payable shall be subject to review at the instance of the landlords at the relevant review date by addition per space of the product of 96 multiplied by 'the car park factor'". Here the court considered the construction of the clause from the view of a reasonable commercial person, looking at the matter objectively.

Autolink Concessionaires (M6) plc v. Amey Construction Limited & Others [2007] CSOH 81

Fri, 04 May 2007 00:00:00 GMT

Commercial Action - Contract

Countrywide North Limited v. GWM Developments Limited [2007] CSOH 60

Fri, 23 Mar 2007 00:00:00 GMT

Breach of Contract - Debate

Giftex Corporation v. Divex Limited [2007] CSOH 48

Fri, 02 Mar 2007 00:00:00 GMT

Proof Before Answer - Breach of Contract

Colin Fraser (AP) v. The Professional Golfers' Association Limited [2006] CSOH 129

Sat, 25 Nov 2006 00:00:00 GMT

Breach of Contract

Central Car Auctions Limited v. House of Sher (UK) Limited [2006] CSOH 137

Tue, 05 Sep 2006 00:00:00 GMT

Preliminary Proof - Breach of Contract

Jessie Duncan and Another v. The MFV Marigold PD 145 and Others [2006] CSOH 128

Tue, 22 Aug 2006 00:00:00 GMT

Debate - Dissolution of Partnership

MacKays Stores Limited v. Toward Limited [2006] CSOH

Fri, 30 Jun 2006 00:00:00 GMT

Commercial Action - Action for Payment - Debate

MacKays Stores Limited v. Toward Limited [2006] CSOH

Fri, 30 Jun 2006 00:00:00 GMT

Commercial Action - Action for Payment - Debate

Alan Baxter Wilson v. Jaymarke Estates Limited + James Shaw

Fri, 25 Nov 2005 00:00:00 GMT

Company Law:

ITP SA v. Technip Offshore UK Limited formerly known as Coflexip Stena Offshore Limited

Tue, 15 Nov 2005 00:00:00 GMT

Expenses:

APC Limited (in receivership) v. Amey Construction Limited + Sir Robert McAlpine Limited + Taylor Woodrow Civil Engineering Limited + Barr Limited all together traing as Amey-Robert McAlpine - TaylorWoodrow - Barr M6 Joint Venture

Fri, 11 Nov 2005 00:00:00 GMT

Action for Recovery:

Anthony M Chapment v Scotleg Sales Limited

Fri, 30 Sep 2005 00:00:00 GMT

Civil

Caterleisure Limited v. Glasgow Prestwick International Airport Limited

Fri, 01 Jul 2005 00:00:00 GMT

Commercial Contract Action:

Elmlford Limited v. McLaglan Investments Limited

Thu, 23 Jun 2005 00:00:00 GMT

Contract:

John Brady + Mrs Moira Anderson Grant or Brady v. Hutton and Phillip and Others

Tue, 03 May 2005 00:00:00 GMT

Breach of Contract/Debate:

Alba Management Consultants Limited v. Carillon PLC + Carillon Service Limited

Wed, 20 Apr 2005 00:00:00 GMT

Verbal Agreement:

Scrabster Harbour Trust + Mowlem Marine a Trading Division of Mowlem PLC V Mowlem PLC Trading as Mowlem Marine + Scrabster Harbour Trust

Wed, 23 Mar 2005 00:00:00 GMT

Two Commercial Actions Relating to the Same Dispute:

The Dundee Taxi Cab Limited v. Dundee City Council + Dundee Taxi Association

Fri, 18 Mar 2005 00:00:00 GMT

Appeal By Second Defendants:

Alan Jones + Mrs. Brenda Margaret Jones v. Andrew Stuart Wood + Mrs. Margaret Wood + John Derek Thomson Bogie

Fri, 18 Mar 2005 00:00:00 GMT

Rectification: