Burns MacPherson & Anor v Grant Williams & Anor [2008] ScotCS CSOH_25 (13 February 2008)

Burns MacPherson & Anor v Grant Williams & Anor [2008] ScotCS CSOH_25 (13 February 2008)

Pursuers' pleadings, though confused, give sufficient notice of the manner in which loss is to be proved; both diminution in value and cost of cure are potentially relevant measures, with cost of cure prevailing if it is less than diminution in value. Solatium for anxiety/distress is not relevantly averred and is excluded, but inconvenience may be recoverable in contract. Proof before answer is allowed on all pleas except for solatium/anxiety/distress claims.

Citation
[2008] ScotCS CSOH_25
Parties
Pursuer: Jamie Burns MacPherson; Pursuer: Mrs Sandra Elaine MacPherson; Defender: James Stuart Grant Williams; Defender: Marie McKay or Williams
Jurisdiction
Scotland
Judgment Date
13 February 2008
Procedural Posture
Civil / Procedure Roll Debate; Interlocutory Judgment on Relevancy and Specification; Proof Before Answer Allowed
Outcome
Proof before answer allowed on all pleas; case put out by order for further procedure; solatium/anxiety/distress averments excluded from probation; expenses reserved.
Legal Topics
Breach of Contract, Breach of Warrandice, Servitude Rights, Damages—diminution in Value, Damages—cost of Cure, Damages—solatium/inconvenience
Property Law Contract Law Breach of Contract Breach of Warrandice Servitude Rights Damages—diminution in Value Damages—cost of Cure Damages—solatium/inconvenience

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Parties

Jamie Burns MacPherson

Pursuer

Mrs Sandra Elaine MacPherson

Pursuer

James Stuart Grant Williams

Defender

Marie McKay or Williams

Defender

Procedural Posture

Civil / Procedure Roll Debate; Interlocutory Judgment on Relevancy and Specification; Proof Before Answer Allowed

Legal Issues

  1. 1 Whether pursuers have relevantly averred loss arising from breach of contract and breach of warrandice due to undisclosed servitude right of access
  2. 2 Whether damages should be assessed by diminution in value or cost of cure
  3. 3 Whether solatium (damages for anxiety/distress) is recoverable

Ratio Decidendi

Pursuers' pleadings, though confused, give sufficient notice of the manner in which loss is to be proved; both diminution in value and cost of cure are potentially relevant measures, with cost of cure prevailing if it is less than diminution in value. Solatium for anxiety/distress is not relevantly averred and is excluded, but inconvenience may be recoverable in contract. Proof before answer is allowed on all pleas except for solatium/anxiety/distress claims.

Court Disposition

Proof before answer allowed on all pleas; case put out by order for further procedure; solatium/anxiety/distress averments excluded from probation; expenses reserved.

Orders

  • Allow proof before answer on all pleas
  • Put case out by order for further procedure on pleadings