Whyte And Mackay Ltd v Capstone International Incorporated [2010] ScotCS CSOH_106 (30 July 2010)

Whyte And Mackay Ltd v Capstone International Incorporated [2010] ScotCS CSOH_106 (30 July 2010)

The defenders established a prima facie case and the balance of convenience favoured granting an interim order to maintain the supply relationship pending litigation, but only on the condition that the defenders first pay the outstanding sum of £239,882.90 to the pursuers. This condition avoids innovation on the parties' contractual rights and remedies, ensuring the pursuers are not compelled to supply further goods while sums remain unpaid.

Citation
[2010] ScotCS CSOH_106
Parties
Pursuer: Whyte and Mackay Limited; Defender: Capstone International Incorporated
Jurisdiction
Scotland
Judgment Date
30 July 2010
Procedural Posture
Commercial Contract Dispute / Interim Order Application (ad Factum Praestandum)
Outcome
Interim order granted with condition
Legal Topics
Distribution Agreements, Specific Implement, Interim Orders, Breach of Contract, Retention of Sums, Balance of Convenience
Contract Law Commercial Law Distribution Agreements Specific Implement Interim Orders Breach of Contract Retention of Sums Balance of Convenience

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Parties

Whyte and Mackay Limited

Pursuer

Capstone International Incorporated

Defender

Procedural Posture

Commercial Contract Dispute / Interim Order Application (ad Factum Praestandum)

Legal Issues

  1. 1 Whether the defenders breached the distribution agreement by not holding appropriate regulatory permissions in their own name
  2. 2 Whether any breach was remedied by the defenders
  3. 3 Whether the pursuers waived their right to terminate for breach

Ratio Decidendi

The defenders established a prima facie case and the balance of convenience favoured granting an interim order to maintain the supply relationship pending litigation, but only on the condition that the defenders first pay the outstanding sum of £239,882.90 to the pursuers. This condition avoids innovation on the parties' contractual rights and remedies, ensuring the pursuers are not compelled to supply further goods while sums remain unpaid.

Court Disposition

Interim order granted with condition

Orders

  • Interim order ad factum praestandum granted under Section 47(2) of the Court of Session Act 1988, requiring the pursuers to continue supplying the defenders pending litigation, but only after the defenders pay the outstanding sum of £239,882.90 to the pursuers.