PROSPECT HEALTHCARE (HAIRMYRES) LTD, RECLAIMING MOTION AGAINST KIER BUILD LTD AND CARILLION CONSTRUCTION LTD [2017] ScotCS CSIH_70 (17 November 2017)

PROSPECT HEALTHCARE (HAIRMYRES) LTD, RECLAIMING MOTION AGAINST KIER BUILD LTD AND CARILLION CONSTRUCTION LTD [2017] ScotCS CSIH_70 (17 November 2017)

Where a final interlocutor is dependent upon an earlier interlocutor, it is competent to review the earlier interlocutor under RCS 38.6(1). However, it is not competent for a party to reclaim against an interlocutor pronounced on its own unopposed motion, particularly after it has been acted upon and implemented.

Citation
[2017] ScotCS CSIH_70
Parties
Pursuer and Respondent: Prospect Healthcare (Hairmyres) Ltd; Defender and Reclaimer: Kier Build Ltd; Third Party: Carillion Construction Ltd
Jurisdiction
Scotland
Judgment Date
17 November 2017
Procedural Posture
Reclaiming Motion (appeal) in Commercial Action / Ruling on Competency of Reclaiming Motion
Outcome
Pursuers' note of objection to competency repelled; third parties' objection sustained in part; reclaiming motion to proceed only as between pursuers and defenders regarding refusal to find pursuers liable for third party expenses.
Legal Topics
Expenses (costs), Competency of Appeal, Third Party Proceedings, Abandonment of Action
Civil Procedure Commercial Law Expenses (costs) Competency of Appeal Third Party Proceedings Abandonment of Action

Case Brief

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Parties

Prospect Healthcare (Hairmyres) Ltd

Pursuer and Respondent

Kier Build Ltd

Defender and Reclaimer

Carillion Construction Ltd

Third Party

Procedural Posture

Reclaiming Motion (appeal) in Commercial Action / Ruling on Competency of Reclaiming Motion

Legal Issues

  1. 1 Whether a reclaiming motion can competently review an earlier interlocutor refusing to find the pursuers liable for third party expenses
  2. 2 Whether prior interlocutors can be reviewed under RCS 38.6(1) when reclaiming against a final interlocutor
  3. 3 Whether a party can reclaim against an interlocutor pronounced on its own unopposed motion

Ratio Decidendi

Where a final interlocutor is dependent upon an earlier interlocutor, it is competent to review the earlier interlocutor under RCS 38.6(1). However, it is not competent for a party to reclaim against an interlocutor pronounced on its own unopposed motion, particularly after it has been acted upon and implemented.

Court Disposition

Pursuers' note of objection to competency repelled; third parties' objection sustained in part; reclaiming motion to proceed only as between pursuers and defenders regarding refusal to find pursuers liable for third party expenses.

Orders

  • Reclaiming motion to proceed between pursuers and defenders on challenge to refusal to find pursuers liable for third party expenses.
  • Reclaiming motion incompetent as regards challenge to paragraph 3 of interlocutor of 15 June 2016 (defenders' liability to third parties' expenses).