Inveresk Plc v Tullis Russell Papermakers Ltd [2008] ScotCS CSOH_124 (29 August 2008)

Inveresk Plc v Tullis Russell Papermakers Ltd [2008] ScotCS CSOH_124 (29 August 2008)

The defenders, having served their draft Consideration Accounts, are bound by them; the contract does not permit revision of the draft by the purchaser after service. The Tonnage Audit, if triggered, is limited to confirming and verifying the Tonnage in the draft Consideration Accounts and any adjustments proposed by the vendor. Since the pursuers withdrew their adjustments and accepted the draft, there is no dispute for expert determination, and the figure in the draft is binding. The defenders' plea for a sist to allow a Tonnage Audit is irrelevant. The plea of retention based on claims under the Services Agreement is not addressed in detail in this ruling.

Citation
[2008] ScotCS CSOH_124
Parties
Pursuer: Inveresk Plc; Defender: Tullis Russell Papermakers Limited
Jurisdiction
Scotland
Judgment Date
29 August 2008
Procedural Posture
Commercial Contract Dispute / Outer House, Court of Session, Post Debate on Amended Pleadings
Outcome
Defenders' arguments rejected; pursuers entitled to decree as craved.
Legal Topics
Interpretation of Contractual Mechanisms, Expert Determination Clauses, Retention of Payment, Mutuality of Obligations
Contract Law Commercial Law Interpretation of Contractual Mechanisms Expert Determination Clauses Retention of Payment Mutuality of Obligations

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Parties

Inveresk Plc

Pursuer

Tullis Russell Papermakers Limited

Defender

Procedural Posture

Commercial Contract Dispute / Outer House, Court of Session, Post Debate on Amended Pleadings

Legal Issues

  1. 1 Whether the defenders are entitled to revise draft Consideration Accounts after service under the Asset Purchase Agreement
  2. 2 Whether the Tonnage Audit procedure can be invoked or is relevant where the pursuers withdraw their adjustments and accept the draft Consideration Accounts
  3. 3 Whether the defenders' plea of retention is relevant in light of claims under a separate Services Agreement

Ratio Decidendi

The defenders, having served their draft Consideration Accounts, are bound by them; the contract does not permit revision of the draft by the purchaser after service. The Tonnage Audit, if triggered, is limited to confirming and verifying the Tonnage in the draft Consideration Accounts and any adjustments proposed by the vendor. Since the pursuers withdrew their adjustments and accepted the draft, there is no dispute for expert determination, and the figure in the draft is binding. The defenders' plea for a sist to allow a Tonnage Audit is irrelevant. The plea of retention based on claims under the Services Agreement is not addressed in detail in this ruling.

Court Disposition

Defenders' arguments rejected; pursuers entitled to decree as craved.

Orders

  • No sist for Tonnage Audit; Additional Consideration as per draft Consideration Accounts is payable.