Cole (t/a Le Sept Restaurant) v Lonie [2001] ScotCS 21 (30 January 2001)

Cole (t/a Le Sept Restaurant) v Lonie [2001] ScotCS 21 (30 January 2001)

The missives imposed separate obligations regarding ventilation and fire/soundproofing. The pursuer only became aware of the breach of the fire/soundproofing obligation in 1992. Therefore, the claim for that breach was not prescribed, and the sheriff principal erred in treating the obligations as unitary for prescription purposes.

Citation
[2001] ScotCS 21
Parties
Pursuer and Appellant: Malcolm Thomas Cole t/a Le Sept Restaurant; Defender and Respondent: Edward Duncan Lonie
Jurisdiction
Scotland
Judgment Date
30 January 2001
Procedural Posture
Appeal From Sheriff Court (civil, Contractual Dispute) / Appeal Judgment From Extra Division, Inner House, Court of Session
Outcome
Appeal allowed; decisions of sheriff and sheriff principal reversed; case remitted for further proof before answer.
Legal Topics
Prescription, Breach of Contract, Lease Missives, Obligations Under Missives, Limitation Periods
Contract Law Property Law Civil Procedure Prescription Breach of Contract Lease Missives Obligations Under Missives Limitation Periods

Case Brief

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Parties

Malcolm Thomas Cole t/a Le Sept Restaurant

Pursuer and Appellant

Edward Duncan Lonie

Defender and Respondent

Procedural Posture

Appeal From Sheriff Court (civil, Contractual Dispute) / Appeal Judgment From Extra Division, Inner House, Court of Session

Legal Issues

  1. 1 Whether the obligations under the missives constituted one or more defaults for the purposes of prescription under the Prescription and Limitation (Scotland) Act 1973
  2. 2 Whether the pursuer's claim was time-barred (prescribed) under the Act

Ratio Decidendi

The missives imposed separate obligations regarding ventilation and fire/soundproofing. The pursuer only became aware of the breach of the fire/soundproofing obligation in 1992. Therefore, the claim for that breach was not prescribed, and the sheriff principal erred in treating the obligations as unitary for prescription purposes.

Court Disposition

Appeal allowed; decisions of sheriff and sheriff principal reversed; case remitted for further proof before answer.

Orders

  • Recall interlocutors of 1 December 1998 and 20 April 1991
  • Repel defender's first and second pleas-in-law