Pelagic Freezing Ltd v Lovie Construction [2010] ScotCS CSOH_145 (28 October 2010)

Pelagic Freezing Ltd v Lovie Construction [2010] ScotCS CSOH_145 (28 October 2010)

The principal defect (panel corrosion) was distinct and first manifested in 2005, with widespread leaks after June 2006. The pursuers did not have actual or constructive knowledge of these defects until within five years before raising the action, due to reliance on professional advice and assurances of warranty. The defenders failed to establish that the pursuers' right of action had prescribed under Section 11(1) of the 1973 Act. Even if prescription prima facie applied, the pursuers were induced by error, attributable to the defenders' conduct and assurances, to refrain from raising proceedings. The action has not prescribed.

Citation
[2010] ScotCS CSOH_145
Parties
Pursuer: Pelagic Freezing (Scotland) Limited; First Defender: Lovie Construction Limited; Second Defender: Grontmij Group Limited
Jurisdiction
Scotland
Judgment Date
28 October 2010
Procedural Posture
Commercial Action / Preliminary Proof on Prescription
Outcome
Defenders' pleas relating to prescription repelled; proof before answer allowed at large.
Legal Topics
Negative Prescription, Latent Defects, Breach of Contract, Professional Negligence, Warranty Liability
Construction Law Contract Law Tort Law Negative Prescription Latent Defects Breach of Contract Professional Negligence Warranty Liability

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Parties

Pelagic Freezing (Scotland) Limited

Pursuer

Lovie Construction Limited

First Defender

Grontmij Group Limited

Second Defender

Procedural Posture

Commercial Action / Preliminary Proof on Prescription

Legal Issues

  1. 1 Has the pursuers' right of action prescribed under the Prescription and Limitation (Scotland) Act 1973?
  2. 2 When did the relevant defects and correlative defaults occur?
  3. 3 Did the pursuers have actual or constructive knowledge of the defects within the prescriptive period?

Ratio Decidendi

The principal defect (panel corrosion) was distinct and first manifested in 2005, with widespread leaks after June 2006. The pursuers did not have actual or constructive knowledge of these defects until within five years before raising the action, due to reliance on professional advice and assurances of warranty. The defenders failed to establish that the pursuers' right of action had prescribed under Section 11(1) of the 1973 Act. Even if prescription prima facie applied, the pursuers were induced by error, attributable to the defenders' conduct and assurances, to refrain from raising proceedings. The action has not prescribed.

Court Disposition

Defenders' pleas relating to prescription repelled; proof before answer allowed at large.

Orders

  • Proof before answer allowed on parties' pleadings at large.
  • Defenders' prescription pleas repelled.