Scottish & Southern Energy Plc v Lerwick Engineering & Fabrication Ltd [2008] ScotCS CSOH_41 (07 March 2008)

Scottish & Southern Energy Plc v Lerwick Engineering & Fabrication Ltd [2008] ScotCS CSOH_41 (07 March 2008)

The indemnity clause requires the pursuers to prove that loss or damage to their property was caused by the defenders' employees; the clause does not require proof of fault, and contributory negligence is not a defence to such a contractual indemnity claim. Mitigation of loss is not a relevant defence to the indemnity claim under clause 13, but may apply to the claim under clause 6, which is a claim for damages for breach of contract.

Citation
[2008] ScotCS CSOH_41
Parties
Pursuer: Scottish and Southern Energy Plc; Defender: Lerwick Engineering & Fabrication Ltd
Jurisdiction
Scotland
Judgment Date
07 March 2008
Procedural Posture
Commercial Contract Dispute / Procedure Roll Discussion on Preliminary Pleas
Outcome
Proof before answer allowed on causation and quantum; certain defences excluded as irrelevant.
Legal Topics
Indemnity Clauses, Contributory Negligence, Mitigation of Loss, Interpretation of Contractual Terms
Contract Law Commercial Law Indemnity Clauses Contributory Negligence Mitigation of Loss Interpretation of Contractual Terms

Case Brief

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Parties

Scottish and Southern Energy Plc

Pursuer

Lerwick Engineering & Fabrication Ltd

Defender

Procedural Posture

Commercial Contract Dispute / Procedure Roll Discussion on Preliminary Pleas

Legal Issues

  1. 1 Whether the indemnity clause covers loss or damage caused by the defenders' employees
  2. 2 Whether contributory negligence is a defence to a contractual indemnity claim
  3. 3 Whether mitigation of loss is a relevant defence to a contractual indemnity claim

Ratio Decidendi

The indemnity clause requires the pursuers to prove that loss or damage to their property was caused by the defenders' employees; the clause does not require proof of fault, and contributory negligence is not a defence to such a contractual indemnity claim. Mitigation of loss is not a relevant defence to the indemnity claim under clause 13, but may apply to the claim under clause 6, which is a claim for damages for breach of contract.

Court Disposition

Proof before answer allowed on causation and quantum; certain defences excluded as irrelevant.

Orders

  • Proof before answer restricted to causation and quantum of loss; defenders' averments and pleas on contributory negligence and mitigation of loss in relation to the indemnity claim excluded; proof allowed on the claim under clause 6 despite sparse pleadings.