Gray & Anor v Welsh [2008] ScotCS CSIH_11 (05 February 2008)

Gray & Anor v Welsh [2008] ScotCS CSIH_11 (05 February 2008)

The court held that the issues of whether a delictual duty of care existed independently or concurrently with any contractual obligation, and the scope of such duty, were potentially difficult and fact-sensitive. The pleadings, though general, were not so lacking in specification as to warrant dismissal at this stage. Accordingly, the matter should proceed to proof before answer for inquiry into the relevant facts.

Citation
[2008] ScotCS CSIH_11
Parties
Pursuers and Respondents: Brian and Jean Gray; Defender and Reclaimer: William Welsh
Jurisdiction
Scotland
Judgment Date
05 February 2008
Procedural Posture
Reclaiming Motion (appeal) in Civil Action / Interlocutory Appeal Against Allowance of Proof Before Answer
Outcome
Reclaiming motion refused; Lord Ordinary's interlocutor adhered to.
Legal Topics
Implied Contractual Terms, Concurrent Liability in Contract and Delict, Economic Loss, Construction of Missives, Duty of Care in Construction, Specification of Pleadings
Contract Law Delict (tort) Property Law Implied Contractual Terms Concurrent Liability in Contract and Delict Economic Loss Construction of Missives Duty of Care in Construction +1 more

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Parties

Brian and Jean Gray

Pursuers and Respondents

William Welsh

Defender and Reclaimer

Procedural Posture

Reclaiming Motion (appeal) in Civil Action / Interlocutory Appeal Against Allowance of Proof Before Answer

Legal Issues

  1. 1 Whether the missives and variations imposed a contractual obligation on the defender to construct the garden ground to a particular standard
  2. 2 Whether a delictual duty of care existed independently or concurrently with any contractual obligation, and its scope
  3. 3 Whether the pleadings gave sufficient specification of the alleged breach of duty

Ratio Decidendi

The court held that the issues of whether a delictual duty of care existed independently or concurrently with any contractual obligation, and the scope of such duty, were potentially difficult and fact-sensitive. The pleadings, though general, were not so lacking in specification as to warrant dismissal at this stage. Accordingly, the matter should proceed to proof before answer for inquiry into the relevant facts.

Court Disposition

Reclaiming motion refused; Lord Ordinary's interlocutor adhered to.

Orders

  • Proof before answer allowed, subject to exclusion of averments regarding Holmwood Green.