Scottish Coal Company Ltd v. Kier Construction Ltd (t/a Kier Mining) [2005] ScotCS CSOH_74 (10 June 2005)

Scottish Coal Company Ltd v. Kier Construction Ltd (t/a Kier Mining) [2005] ScotCS CSOH_74 (10 June 2005)

The defenders were contractually obliged to extract all coal from the site unless instructed otherwise by the site manager. The liquidated damages clauses do not apply to the defenders' failure to complete extraction of all coal, and thus do not preclude the pursuers from seeking common law damages for that breach. The pursuers' averments of loss are relevant and sufficiently pled for proof.

Citation
[2005] ScotCS CSOH_74
Parties
Pursuer: Scottish Coal Company Limited; Defender: Kier Construction Limited t/a Kier Mining
Jurisdiction
Scotland
Judgment Date
10 June 2005
Procedural Posture
Civil (contractual Dispute) / Procedure Roll (plea to Relevancy)
Outcome
Defenders' first and second pleas in law repelled; proof before answer allowed.
Legal Topics
Construction of Contract, Liquidated Damages, Obligations of Contractor, Damages for Breach of Contract, Mitigation of Loss
Contract Law Commercial Law Construction of Contract Liquidated Damages Obligations of Contractor Damages for Breach of Contract Mitigation of Loss

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Parties

Scottish Coal Company Limited

Pursuer

Kier Construction Limited t/a Kier Mining

Defender

Procedural Posture

Civil (contractual Dispute) / Procedure Roll (plea to Relevancy)

Legal Issues

  1. 1 Whether the defenders' primary obligation was to extract all coal or only the minimum specified in the delivery schedule
  2. 2 Whether the pursuers are limited to liquidated damages or can claim common law damages for failure to extract all coal
  3. 3 Whether the pursuers' averments of loss are relevant given alleged failure to account for retained coal and fixed costs

Ratio Decidendi

The defenders were contractually obliged to extract all coal from the site unless instructed otherwise by the site manager. The liquidated damages clauses do not apply to the defenders' failure to complete extraction of all coal, and thus do not preclude the pursuers from seeking common law damages for that breach. The pursuers' averments of loss are relevant and sufficiently pled for proof.

Court Disposition

Defenders' first and second pleas in law repelled; proof before answer allowed.

Orders

  • Proof before answer allowed.