F Brown Plc v Tarmac Construction (Contracts) Ltd [2000] ScotCS 38 (11 February 2000)

F Brown Plc v Tarmac Construction (Contracts) Ltd [2000] ScotCS 38 (11 February 2000)

The court held that the implied term contended for by the pursuers was not necessary for business efficacy given the express terms of the sub-contract, and the pleadings did not justify its implication. Certain claims (first and fourth craves) were irrelevant and/or prescribed and were dismissed. Other claims, subject to minor exclusions for lack of specification, were sufficiently relevant and specified to proceed to proof before answer.

Citation
[2000] ScotCS 38
Parties
Pursuer: F. Brown Plc; Defender: Tarmac Construction (Contracts) Limited
Jurisdiction
Scotland
Judgment Date
11 February 2000
Procedural Posture
Commercial Construction Dispute / Procedure Roll Debate (pre Proof)
Outcome
Partial dismissal; proof before answer allowed on remaining claims
Legal Topics
Implied Terms in Contracts, Prescription (limitation of Actions), Relevancy and Specification of Pleadings, Variations Under Construction Contracts
Contract Law Construction Law Civil Procedure Implied Terms in Contracts Prescription (limitation of Actions) Relevancy and Specification of Pleadings Variations Under Construction Contracts

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Parties

F. Brown Plc

Pursuer

Tarmac Construction (Contracts) Limited

Defender

Procedural Posture

Commercial Construction Dispute / Procedure Roll Debate (pre Proof)

Legal Issues

  1. 1 Whether an implied term should be read into the sub-contract obliging the defenders to take all steps reasonably necessary to enable the pursuers to discharge their obligations and execute the works in an orderly manner
  2. 2 Whether certain claims advanced by the pursuers have prescribed under the Prescription and Limitation (Scotland) Act 1973
  3. 3 Whether the pursuers' pleadings are relevant and sufficiently specific to go to proof, particularly regarding delay, disruption, and variations

Ratio Decidendi

The court held that the implied term contended for by the pursuers was not necessary for business efficacy given the express terms of the sub-contract, and the pleadings did not justify its implication. Certain claims (first and fourth craves) were irrelevant and/or prescribed and were dismissed. Other claims, subject to minor exclusions for lack of specification, were sufficiently relevant and specified to proceed to proof before answer.

Court Disposition

Partial dismissal; proof before answer allowed on remaining claims

Orders

  • Excluded from probation the pursuers' averments relating to the implied term and certain other averments for lack of relevancy or specification
  • Granted decree of dismissal in respect of the first and fourth craves