McGoff v. Bonnington Roofing Ltd & Ors [2004] ScotCS 120 (20 April 2004)

McGoff v. Bonnington Roofing Ltd & Ors [2004] ScotCS 120 (20 April 2004)

The appeal was allowed because the sheriff's decision was based on arguments and authorities not fully presented or pleaded, and the factual basis was inadequate; the case was remitted for proper amendment of pleadings and full debate on prescription.

Citation
[2004] ScotCS 120
Parties
Pursuer and First Respondent: James McGoff; Defender and Appellant: Bonnington Roofing Limited; First Third Party and Second Respondent: Signa Insurance Company of Europe S.A.-N.V.; Second Third Party and Third Respondent: Messrs Cuthbert Service and Jackson Limited
Jurisdiction
Scotland
Judgment Date
20 April 2004
Procedural Posture
Appeal / Appeal From Sheriff's Interlocutor on Preliminary Pleas
Outcome
Appeal allowed; sheriff's interlocutor recalled; case remitted to sheriff for further procedure; no expenses due to or by either party.
Legal Topics
Prescription, Indemnity, Breach of Contract, Insurance Repudiation, Pecuniary Loss
Insurance Law Contract Law Civil Procedure Prescription Indemnity Breach of Contract Insurance Repudiation Pecuniary Loss

Case Brief

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Parties

James McGoff

Pursuer and First Respondent

Bonnington Roofing Limited

Defender and Appellant

Signa Insurance Company of Europe S.A.-N.V.

First Third Party and Second Respondent

Messrs Cuthbert Service and Jackson Limited

Second Third Party and Third Respondent

Procedural Posture

Appeal / Appeal From Sheriff's Interlocutor on Preliminary Pleas

Legal Issues

  1. 1 Whether the defender's claim against the second third party (insurance broker) was extinguished by prescription under the Prescription and Limitation (Scotland) Act 1973
  2. 2 Whether repudiation of insurance by the insurer constituted a quantifiable loss starting the prescriptive period
  3. 3 Whether premium paid under the insurance contract constituted a material loss

Ratio Decidendi

The appeal was allowed because the sheriff's decision was based on arguments and authorities not fully presented or pleaded, and the factual basis was inadequate; the case was remitted for proper amendment of pleadings and full debate on prescription.

Court Disposition

Appeal allowed; sheriff's interlocutor recalled; case remitted to sheriff for further procedure; no expenses due to or by either party.

Orders

  • Recall of sheriff's interlocutor dated 21 October 2003
  • Remit case to sheriff to proceed as accords