HIGHLANDS AND ISLANDS ENTERPRISE AGAINST GALLIFORD TRY INFRASTRUCTURE LTD [2023] ScotCS CSOH_21 (10 March 2023)

HIGHLANDS AND ISLANDS ENTERPRISE AGAINST GALLIFORD TRY INFRASTRUCTURE LTD [2023] ScotCS CSOH_21 (10 March 2023)

The pursuer's averments are sufficient to entitle it to proof before answer on whether prescription is postponed under sections 6(4) or 11(3) of the 1973 Act, except in relation to the claim for scarf joint cracking, where the pleadings are insufficiently specific regarding materiality of loss. The onus of pleading reasonable diligence rests with the defender, and the pursuer's position does not amount to offering to prove inconsistent facts. The case will proceed to proof except for the insufficiently specified head of claim.

Citation
[2023] ScotCS CSOH_21
Parties
Pursuer: Highlands and Islands Enterprise; First Defender: Galliford Try Infrastructure Limited; Second Defender: A. F. Cruden Associates Limited (In Liquidation)
Jurisdiction
Scotland
Judgment Date
10 March 2023
Procedural Posture
Commercial Action (damages for Breach of Contract and Delict) / Debate on Prescription Plea Prior to Proof Before Answer
Outcome
Action to proceed to proof before answer with first defender's prescription plea standing; pursuer's section 11(3) case regarding scarf joint cracking excluded from proof.
Legal Topics
Prescription (limitation of Actions), Breach of Contract, Induced Error, Reasonable Diligence, Materiality of Loss
Civil Procedure Contract Law Delict (tort) Construction Law Prescription (limitation of Actions) Breach of Contract Induced Error Reasonable Diligence +1 more

Case Brief

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Parties

Highlands and Islands Enterprise

Pursuer

Galliford Try Infrastructure Limited

First Defender

A. F. Cruden Associates Limited (In Liquidation)

Second Defender

Procedural Posture

Commercial Action (damages for Breach of Contract and Delict) / Debate on Prescription Plea Prior to Proof Before Answer

Legal Issues

  1. 1 Whether the pursuer's claim against the first defender is extinguished by prescription under the Prescription and Limitation (Scotland) Act 1973
  2. 2 Whether the pursuer could rely on section 6(4) or 11(3) of the 1973 Act to postpone the commencement of the prescriptive period
  3. 3 Whether the pursuer exercised reasonable diligence in discovering the alleged defects and loss

Ratio Decidendi

The pursuer's averments are sufficient to entitle it to proof before answer on whether prescription is postponed under sections 6(4) or 11(3) of the 1973 Act, except in relation to the claim for scarf joint cracking, where the pleadings are insufficiently specific regarding materiality of loss. The onus of pleading reasonable diligence rests with the defender, and the pursuer's position does not amount to offering to prove inconsistent facts. The case will proceed to proof except for the insufficiently specified head of claim.

Court Disposition

Action to proceed to proof before answer with first defender's prescription plea standing; pursuer's section 11(3) case regarding scarf joint cracking excluded from proof.

Orders

  • Action proceeds to proof before answer as scheduled.
  • Case put out By Order to discuss consequences for pleadings regarding exclusion of scarf joint cracking claim under section 11(3).