Brackencroft Ltd v. Silvers Marine Ltd [2006] ScotCS CSIH_2 (06 January 2006)

Brackencroft Ltd v. Silvers Marine Ltd [2006] ScotCS CSIH_2 (06 January 2006)

The document lodged by the defenders was not a valid judicial tender because it did not follow the established form requiring an explicit offer of expenses to the date of the tender, as laid down in McKenzie v H. D. Fraser & Sons. The sheriff erred in law by treating it as such. However, the existence of the offer may still be considered in determining expenses, and the matter should be remitted to the sheriff for reconsideration.

Citation
[2006] ScotCS CSIH_2
Parties
Pursuers and Appellants: Brackencroft Limited; Defenders and Respondents: Silvers Marine Limited
Jurisdiction
Scotland
Judgment Date
06 January 2006
Procedural Posture
Appeal / Appeal From Sheriff Court on Issue of Expenses
Outcome
Appeal allowed in part; matter of expenses remitted to sheriff for reconsideration
Legal Topics
Judicial Tender, Expenses of Process, Breach of Contract, Damages
Civil Procedure Contract Law Judicial Tender Expenses of Process Breach of Contract Damages

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Parties

Brackencroft Limited

Pursuers and Appellants

Silvers Marine Limited

Defenders and Respondents

Procedural Posture

Appeal / Appeal From Sheriff Court on Issue of Expenses

Legal Issues

  1. 1 Whether the document lodged by defenders constituted a valid judicial tender affecting expenses
  2. 2 Legal consequences of lodging a tender not in the ordinary form regarding expenses

Ratio Decidendi

The document lodged by the defenders was not a valid judicial tender because it did not follow the established form requiring an explicit offer of expenses to the date of the tender, as laid down in McKenzie v H. D. Fraser & Sons. The sheriff erred in law by treating it as such. However, the existence of the offer may still be considered in determining expenses, and the matter should be remitted to the sheriff for reconsideration.

Court Disposition

Appeal allowed in part; matter of expenses remitted to sheriff for reconsideration

Orders

  • Sheriff's decision on expenses set aside
  • Issue of expenses remitted to sheriff for reconsideration in light of the court's opinion