City Inn Ltd v Shepherd Construction Ltd [2006] ScotCS CSOH_94 (20 June 2006)

City Inn Ltd v Shepherd Construction Ltd [2006] ScotCS CSOH_94 (20 June 2006)

Defenders' averments on waiver, acquiescence, and personal bar are legally relevant and must be remitted to proof before answer. The immunity conferred by clause 13.8.5 is capable of being waived. The status of the hybrid piling solution and entitlement to extension of time or time at large depends on factual determination at proof. The pleadings cannot be dismissed at this stage.

Citation
[2006] ScotCS CSOH_94
Parties
Pursuer: City Inn Limited; Defender: Shepherd Construction Limited
Jurisdiction
Scotland
Judgment Date
20 June 2006
Procedural Posture
Commercial Construction Contract Dispute / Interlocutory Opinion on Relevancy and Remittal to Proof Before Answer
Outcome
Defenders' averments on waiver, acquiescence, personal bar, and hybrid piling solution remitted to proof before answer; pursuers' relevancy arguments rejected at this stage.
Legal Topics
Extension of Time, Liquidated Damages, Waiver, Acquiescence, Personal Bar, Variation of Works, Performance Specified Work
Construction Law Contract Law Extension of Time Liquidated Damages Waiver Acquiescence Personal Bar Variation of Works +1 more

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Parties

City Inn Limited

Pursuer

Shepherd Construction Limited

Defender

Procedural Posture

Commercial Construction Contract Dispute / Interlocutory Opinion on Relevancy and Remittal to Proof Before Answer

Legal Issues

  1. 1 Whether clause 13.8 procedures are mandatory for contractor's entitlement to extension of time
  2. 2 Whether employer's immunity under clause 13.8.5 can be waived or acquiesced
  3. 3 Whether hybrid piling solution constituted a variation requiring architect's instruction

Ratio Decidendi

Defenders' averments on waiver, acquiescence, and personal bar are legally relevant and must be remitted to proof before answer. The immunity conferred by clause 13.8.5 is capable of being waived. The status of the hybrid piling solution and entitlement to extension of time or time at large depends on factual determination at proof. The pleadings cannot be dismissed at this stage.

Court Disposition

Defenders' averments on waiver, acquiescence, personal bar, and hybrid piling solution remitted to proof before answer; pursuers' relevancy arguments rejected at this stage.

Orders

  • Remit defenders' averments to probation
  • Proceed to proof before answer on all disputed issues