PROSPECT HEALTHCARE (HAIRMYRES) LIMITED, RECLAIMING MOTION AGAINST KIER BUILD LIMITED [2018] ScotCS CSIH_43 (19 June 2018)

PROSPECT HEALTHCARE (HAIRMYRES) LIMITED, RECLAIMING MOTION AGAINST KIER BUILD LIMITED [2018] ScotCS CSIH_43 (19 June 2018)

The commercial judge correctly applied the established Scottish principle that a party is only liable for the expenses of those they have convened and against whom they have directed a case. There was no error of law or improper exercise of discretion. The defenders, having chosen to convene the third party, assumed the risk of liability for their expenses. There was no basis for departing from the general rule, and the circumstances did not merit a different result.

Citation
[2018] ScotCS CSIH_43
Parties
Pursuers and Respondents: Prospect Healthcare (Hairmyres) Ltd; Defenders and Reclaimers: Kier Build Ltd
Jurisdiction
Scotland
Judgment Date
19 June 2018
Procedural Posture
Reclaiming Motion (appeal) / Appeal Against Interlocutor on Expenses After Abandonment of Action
Outcome
Reclaiming motion refused
Legal Topics
Expenses (costs), Third Party Procedure, Discretion in Awarding Costs, Abandonment of Action
Civil Procedure Contract Law Construction Law Expenses (costs) Third Party Procedure Discretion in Awarding Costs Abandonment of Action

Case Brief

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Parties

Prospect Healthcare (Hairmyres) Ltd

Pursuers and Respondents

Kier Build Ltd

Defenders and Reclaimers

Procedural Posture

Reclaiming Motion (appeal) / Appeal Against Interlocutor on Expenses After Abandonment of Action

Legal Issues

  1. 1 Whether the commercial judge erred in refusing to make the pursuers liable for the defenders' liability to pay third party expenses after abandonment of the action
  2. 2 Whether Scottish law should follow the English approach to costs in third party procedure cases

Ratio Decidendi

The commercial judge correctly applied the established Scottish principle that a party is only liable for the expenses of those they have convened and against whom they have directed a case. There was no error of law or improper exercise of discretion. The defenders, having chosen to convene the third party, assumed the risk of liability for their expenses. There was no basis for departing from the general rule, and the circumstances did not merit a different result.

Court Disposition

Reclaiming motion refused

Orders

  • The commercial judge's interlocutor is affirmed; pursuers are not liable for the defenders' liability to pay third party expenses; each party bears expenses as previously determined.