DALTON GROUP LTD AGAINST CITY OF EDINBURGH COUNCIL [2023] ScotCS CSOH_4 (26 January 2023)

DALTON GROUP LTD AGAINST CITY OF EDINBURGH COUNCIL [2023] ScotCS CSOH_4 (26 January 2023)

Where a contract has not been terminated, damages are not to be assessed by reference to the least burdensome method of lawful termination. The elective theory of termination applies, and the pursuer may insist on the contract remaining in force unless and until it is lawfully terminated.

Citation
[2023] ScotCS CSOH_4
Parties
Pursuer: Dalton Group Limited; Defender: City of Edinburgh Council
Jurisdiction
Scotland
Judgment Date
26 January 2023
Procedural Posture
Commercial Action for Breach of Contract / Preliminary Issue for Debate; Proof Before Answer Ordered
Outcome
Pursuer's motion granted; proof before answer allowed; all pleas standing; expenses reserved.
Legal Topics
Damages Assessment, Termination of Contract, Repudiatory Breach, Elective Theory of Termination
Contract Law Commercial Law Damages Assessment Termination of Contract Repudiatory Breach Elective Theory of Termination

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Parties

Dalton Group Limited

Pursuer

City of Edinburgh Council

Defender

Procedural Posture

Commercial Action for Breach of Contract / Preliminary Issue for Debate; Proof Before Answer Ordered

Legal Issues

  1. 1 Should damages for breach of contract be assessed by reference to the least burdensome method of lawful termination when the contract has not been terminated?
  2. 2 Does the elective theory of termination apply where the contract remains in force after an alleged repudiatory breach?

Ratio Decidendi

Where a contract has not been terminated, damages are not to be assessed by reference to the least burdensome method of lawful termination. The elective theory of termination applies, and the pursuer may insist on the contract remaining in force unless and until it is lawfully terminated.

Court Disposition

Pursuer's motion granted; proof before answer allowed; all pleas standing; expenses reserved.

Orders

  • Allow proof before answer with all pleas standing
  • Reserve question of expenses