Friends Provident Life Assurance Ltd v Sir Robert McAlpine Ltd [2014] ScotCS CSOH_74 (24 April 2014)

Friends Provident Life Assurance Ltd v Sir Robert McAlpine Ltd [2014] ScotCS CSOH_74 (24 April 2014)

The calling of the summons was valid because the right of action and conduct of the action had transferred to Friends Life Ltd by court order, and the technical irregularity did not nullify the proceedings. Amendment to substitute the correct party is competent. The defender's construction of the collateral warranty would deprive it of commercial efficacy and is rejected.

Citation
[2014] ScotCS CSOH_74
Parties
Pursuer: Friends Provident Life Assurance Ltd; Defender: Sir Robert McAlpine Ltd
Jurisdiction
Scotland
Judgment Date
24 April 2014
Procedural Posture
Civil Breach of Collateral Warranty / Interlocutory Judgment on Preliminary Issues
Outcome
Preliminary objections by defender rejected; amendment to substitute Friends Life Ltd for Friends Provident Life Assurance Ltd allowed; case to proceed to further procedure.
Legal Topics
Collateral Warranty, Assignment of Rights, Prescription, Amendment of Pleadings, Measure of Damages
Contract Law Construction Law Insurance Law Collateral Warranty Assignment of Rights Prescription Amendment of Pleadings Measure of Damages

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Parties

Friends Provident Life Assurance Ltd

Pursuer

Sir Robert McAlpine Ltd

Defender

Procedural Posture

Civil Breach of Collateral Warranty / Interlocutory Judgment on Preliminary Issues

Legal Issues

  1. 1 Whether the summons was validly lodged for calling after transfer of title
  2. 2 Whether amendment to substitute the correct party is competent
  3. 3 Whether the defender is liable under the collateral warranty given the prescription of the original claim

Ratio Decidendi

The calling of the summons was valid because the right of action and conduct of the action had transferred to Friends Life Ltd by court order, and the technical irregularity did not nullify the proceedings. Amendment to substitute the correct party is competent. The defender's construction of the collateral warranty would deprive it of commercial efficacy and is rejected.

Court Disposition

Preliminary objections by defender rejected; amendment to substitute Friends Life Ltd for Friends Provident Life Assurance Ltd allowed; case to proceed to further procedure.

Orders

  • Repel defender's fourth plea-in-law ('all parties not called')
  • Allow amendment to substitute Friends Life Ltd as pursuer