Kvaerner Construction (Regions) Ltd v Kirkpatrick & Partners Consulting Engineers Ltd & Ors [1998] ScotCS 79 (26 November 1998)

Kvaerner Construction (Regions) Ltd v Kirkpatrick & Partners Consulting Engineers Ltd & Ors [1998] ScotCS 79 (26 November 1998)

The pursuers' averments of loss in Claim A are relevant and should be allowed to go to proof before answer. It is not necessary at this stage for the pursuers to aver in detail what would have happened had the defenders not breached their duties. The measure of damages and the assessment of loss are matters of fact to be determined at proof, and the approach advanced by the defenders would require speculative and unrealistic averments. The Lord Ordinary was correct to allow proof before answer, reserving all pleas to relevancy.

Citation
[1998] ScotCS 79
Parties
Pursuers and Respondents: Kvaerner Construction (Regions) Limited; Defenders and Reclaimers: Kirkpatrick & Partners Consulting Engineers Limited and Others
Jurisdiction
Scotland
Judgment Date
26 November 1998
Procedural Posture
Reclaiming Motion (appeal) / Interlocutory (pleadings Relevancy and Allowance of Proof Before Answer)
Outcome
Reclaiming motion refused; proof before answer allowed.
Legal Topics
Measure of Damages, Relevancy of Pleadings, Professional Duty of Care, Assessment of Loss
Contract Law Professional Negligence Civil Procedure Measure of Damages Relevancy of Pleadings Professional Duty of Care Assessment of Loss

Case Brief

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Parties

Kvaerner Construction (Regions) Limited

Pursuers and Respondents

Kirkpatrick & Partners Consulting Engineers Limited and Others

Defenders and Reclaimers

Procedural Posture

Reclaiming Motion (appeal) / Interlocutory (pleadings Relevancy and Allowance of Proof Before Answer)

Legal Issues

  1. 1 Whether the pursuers' averments of loss in Claim A are relevant for enquiry in a case of alleged professional negligence and breach of contract.
  2. 2 Whether the pursuers must aver what would have happened had the defenders not breached their duties.

Ratio Decidendi

The pursuers' averments of loss in Claim A are relevant and should be allowed to go to proof before answer. It is not necessary at this stage for the pursuers to aver in detail what would have happened had the defenders not breached their duties. The measure of damages and the assessment of loss are matters of fact to be determined at proof, and the approach advanced by the defenders would require speculative and unrealistic averments. The Lord Ordinary was correct to allow proof before answer, reserving all pleas to relevancy.

Court Disposition

Reclaiming motion refused; proof before answer allowed.

Orders

  • Proof before answer allowed on the averments of both parties, reserving all pleas to relevancy.