Perth & Kinross Council v Scottish Water Ltd & Anor [2015] ScotCS CSOH_138 (20 October 2015)

Perth & Kinross Council v Scottish Water Ltd & Anor [2015] ScotCS CSOH_138 (20 October 2015)

The error in naming the defender was clerical and not substantive; the amendment is a correction, not a substitution. The real party responsible for the statutory duty was always Scottish Water, and the interests of justice favour allowing the amendment. The prejudice to Scottish Water is limited to loss of a windfall prescription defence, which carries little weight.

Citation
[2015] ScotCS CSOH_138
Parties
Pursuer: Perth & Kinross Council; First Defender: Scottish Water Limited; Second Defender: Millglen (Glasgow) Limited
Jurisdiction
Scotland
Judgment Date
20 October 2015
Procedural Posture
Delict (tort) for Reparation / Motion to Amend Summons; Interlocutory Decision
Outcome
Amendment allowed; re-service dispensed with; first defenders entitled to expenses.
Legal Topics
Amendment of Pleadings, Correction Vs Substitution of Parties, Prescription, Statutory Obligations for Sewer Maintenance
Civil Procedure Delict Statutory Duty Amendment of Pleadings Correction Vs Substitution of Parties Prescription Statutory Obligations for Sewer Maintenance

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Parties

Perth & Kinross Council

Pursuer

Scottish Water Limited

First Defender

Millglen (Glasgow) Limited

Second Defender

Procedural Posture

Delict (tort) for Reparation / Motion to Amend Summons; Interlocutory Decision

Legal Issues

  1. 1 Whether amendment to correct the designation of the defender is permissible after expiry of the prescriptive period
  2. 2 Whether the amendment constitutes a correction or a substitution under RCS 24
  3. 3 Whether prejudice to the defender outweighs the interests of justice

Ratio Decidendi

The error in naming the defender was clerical and not substantive; the amendment is a correction, not a substitution. The real party responsible for the statutory duty was always Scottish Water, and the interests of justice favour allowing the amendment. The prejudice to Scottish Water is limited to loss of a windfall prescription defence, which carries little weight.

Court Disposition

Amendment allowed; re-service dispensed with; first defenders entitled to expenses.

Orders

  • Leave granted to amend the summons by changing 'Scottish Water Limited' to 'Scottish Water'
  • Re-service dispensed with