Clark & Anor v Turnbull & Anor [2017] ScotCS CSOH_4 (06 January 2017)

Clark & Anor v Turnbull & Anor [2017] ScotCS CSOH_4 (06 January 2017)

The pursuers' first and third claims are extinguished by prescription as loss occurred and was known when marketing and conveyancing costs were incurred, regardless of awareness of negligence. The second claim may proceed to proof before answer, as loss (penalties and surcharges) may not have been known until May 2009. Claims for distress are not legally recoverable in this context.

Citation
[2017] ScotCS CSOH_4
Parties
First Pursuer: James Clark; Second Pursuer: William Clark; Defender: Sandra M L Turnbull; Defender: Mark Robertson
Jurisdiction
Scotland
Judgment Date
06 January 2017
Procedural Posture
Professional Negligence Action / Debate on Preliminary Pleas
Outcome
First and third claims dismissed as prescribed; second claim allowed to proceed to proof before answer.
Legal Topics
Prescription of Claims, Capital Gains Tax Liability, Breach of Contract, Damages for Distress, Tax Penalties and Surcharges
Professional Negligence Contract Law Tax Law Prescription Prescription of Claims Capital Gains Tax Liability Breach of Contract Damages for Distress +1 more

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Parties

James Clark

First Pursuer

William Clark

Second Pursuer

Sandra M L Turnbull

Defender

Mark Robertson

Defender

Procedural Posture

Professional Negligence Action / Debate on Preliminary Pleas

Legal Issues

  1. 1 Whether the pursuers' claims for professional negligence and breach of contract have been extinguished by prescription
  2. 2 Whether claims for distress are legally recoverable in professional negligence actions
  3. 3 Whether the pleadings are relevant and sufficiently clear regarding liability

Ratio Decidendi

The pursuers' first and third claims are extinguished by prescription as loss occurred and was known when marketing and conveyancing costs were incurred, regardless of awareness of negligence. The second claim may proceed to proof before answer, as loss (penalties and surcharges) may not have been known until May 2009. Claims for distress are not legally recoverable in this context.

Court Disposition

First and third claims dismissed as prescribed; second claim allowed to proceed to proof before answer.

Orders

  • Pursuers allowed final opportunity to amend pleadings regarding liability for second claim.
  • Case put out by order to discuss further procedure and expenses.