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United Central Bakeries Ltd v Spooner Industries Ltd and Forbo Siegling (UK) Ltd - [2012] CSOH 111 - 29 June 2012


The defenders supplied a conveyor to the pursuers, a bakery, that was installed to convey hot bread from the oven to another area. The conveyor material had been ignited by burning bread and the resulting fire had damaged the building.
The principal contractual claims against Spooner are to be the subject of a proof. The defenders in a debate sought to exclude from probation (a) UCB's case against them in delict which concerned alleged negligent misrepresentation in the context of the supply of the replacement belting and (b) averments about a collateral warranty.

The court allowed continuation to proof for damages in delict but dismissed the pursuer's averement that a warranty had been given by the defenders that the conveyor was suitable for the use it was put to.

The court held that a separate agreement outside the contract such as a warranty must be shown to be governed by either the Supply of Goods and Services Act 1982 or the Sale of Goods Act 1979. In the absence of this and lacking communication between defender and pursuer that was capable of constituting a warranty, the court held that no warranty existed.

Lord Hodge held that because the case was concerned with physical damage to property allegedly caused by the defenders' negligent misstatements it represented a simple application of the Donoghue neighbourhood principle. Whether a negligent misrepresentation causes physical damage or pure financial loss, in determining the existence and ambit of a duty of care the court had to assess (i) the context in which the defender made the statement or statements, (ii) the foreseeability of the pursuer's reliance on the statements and (iii) the meaning of any representation (Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465). The court held it was necessary to establish these facts at proof before deciding the merits of UCB's case of negligent misrepresentation.