W M MORRISON SUPERMARKETS PLC AGAINST (FIRST) LEM ESTATES LTD (IN LIQUIDATION) and KEITH ANDERSON, the liquidator thereof; (SECOND) STRUER CONSULTING ENGINEERS LTD; (THIRD) MUIR CONSTRUCTION LTD [2020] ScotCS CSOH_31 (11 March 2020)

W M MORRISON SUPERMARKETS PLC AGAINST (FIRST) LEM ESTATES LTD (IN LIQUIDATION) and KEITH ANDERSON, the liquidator thereof; (SECOND) STRUER CONSULTING ENGINEERS LTD; (THIRD) MUIR CONSTRUCTION LTD [2020] ScotCS CSOH_31 (11 March 2020)

On a proper construction of the Appointment Agreement and the Building Contract, the second and third defenders are contractually responsible for the design of the car park surface course, including the use of TarmacDry. The third defender's plea of personal bar is irrelevant, as there was no representation of fact, no pre-existing right, and no reasonable reliance. The prescription defence requires further inquiry but is not determined at this stage.

Citation
[2020] ScotCS CSOH_31
Parties
Pursuer: W M Morrison Supermarkets PLC; First Defender: LEM Estates Ltd (in liquidation) and Keith Anderson, liquidator; Second Defender: Struer Consulting Engineers Ltd; Third Defender: Muir Construction Ltd
Jurisdiction
Scotland
Judgment Date
11 March 2020
Procedural Posture
Commercial Action (construction Dispute) / Debate on Relevancy and Prescription (preliminary Issues)
Outcome
Certain averments by the second and third defenders excluded from probation; third defender's plea of personal bar repelled; prescription issue reserved for further inquiry.
Legal Topics
Design Responsibility, Collateral Warranties, Personal Bar (estoppel), Prescription (limitation), Duty of Care, Interpretation of Contracts
Construction Law Contract Law Professional Negligence Scots Law Design Responsibility Collateral Warranties Personal Bar (estoppel) Prescription (limitation) +2 more

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Parties

W M Morrison Supermarkets PLC

Pursuer

LEM Estates Ltd (in liquidation) and Keith Anderson, liquidator

First Defender

Struer Consulting Engineers Ltd

Second Defender

Muir Construction Ltd

Third Defender

Procedural Posture

Commercial Action (construction Dispute) / Debate on Relevancy and Prescription (preliminary Issues)

Legal Issues

  1. 1 Whether the second and third defenders are contractually responsible for the design of the car park surface course, including the use of TarmacDry.
  2. 2 Whether the third defender's plea of personal bar (estoppel) is relevant.
  3. 3 Whether certain claims are extinguished by prescription under the Prescription and Limitation (Scotland) Act 1973.

Ratio Decidendi

On a proper construction of the Appointment Agreement and the Building Contract, the second and third defenders are contractually responsible for the design of the car park surface course, including the use of TarmacDry. The third defender's plea of personal bar is irrelevant, as there was no representation of fact, no pre-existing right, and no reasonable reliance. The prescription defence requires further inquiry but is not determined at this stage.

Court Disposition

Certain averments by the second and third defenders excluded from probation; third defender's plea of personal bar repelled; prescription issue reserved for further inquiry.

Orders

  • Exclude from probation the second and third defenders' averments denying design responsibility for the car park surface course.
  • Repel the third defender's plea of personal bar.