BRITISH OVERSEAS BANK NOMINEES LTD, RECLAIMING MOTION BY BRITISH OVERSEAS BANK NOMINEES LTD AND OTHERS AGAINST STEWART MILNE GROUP LTD [2019] ScotCS CSIH_47 (10 September 2019)

BRITISH OVERSEAS BANK NOMINEES LTD, RECLAIMING MOTION BY BRITISH OVERSEAS BANK NOMINEES LTD AND OTHERS AGAINST STEWART MILNE GROUP LTD [2019] ScotCS CSIH_47 (10 September 2019)

The collateral warranty agreement, properly construed, incorporates the same prescriptive period as the original building contract, and the defender is entitled to rely on contractual limitations and defences, including prescription, against the beneficiary. The pursuers' claim was extinguished by prescription before the action was raised.

Citation
[2019] ScotCS CSIH_47
Parties
Pursuers and Respondents: British Overseas Bank Nominees Ltd and Others; Defender and Reclaimer: Stewart Milne Group Ltd
Jurisdiction
Scotland
Judgment Date
10 September 2019
Procedural Posture
Reclaiming Motion / Appeal From Commercial Judge's Interlocutor
Outcome
Reclaiming motion allowed; Commercial Judge's interlocutors recalled; defender's plea sustained; pursuers' pleas repelled; case remitted to Commercial Judge.
Legal Topics
Collateral Warranty, Prescription, Limitation of Liability, Contractual Interpretation
Contract Law Construction Law Collateral Warranty Prescription Limitation of Liability Contractual Interpretation

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Parties

British Overseas Bank Nominees Ltd and Others

Pursuers and Respondents

Stewart Milne Group Ltd

Defender and Reclaimer

Procedural Posture

Reclaiming Motion / Appeal From Commercial Judge's Interlocutor

Legal Issues

  1. 1 Whether the collateral warranty incorporates the same prescriptive period as the original building contract
  2. 2 Whether the defender can rely on contractual time-bar provisions against the beneficiary of the collateral warranty

Ratio Decidendi

The collateral warranty agreement, properly construed, incorporates the same prescriptive period as the original building contract, and the defender is entitled to rely on contractual limitations and defences, including prescription, against the beneficiary. The pursuers' claim was extinguished by prescription before the action was raised.

Court Disposition

Reclaiming motion allowed; Commercial Judge's interlocutors recalled; defender's plea sustained; pursuers' pleas repelled; case remitted to Commercial Judge.

Orders

  • Recall interlocutors of Commercial Judge dated 8 January 2019 and 16 January 2019 as regards expenses of debate.
  • Sustain defender's first plea-in-law to exclude from probation pursuers' averments relating to clause 3.1 of the Collateral Warranty.