BRIGGS OF BURTON PLC AGAINST DOOSAN BABCOCK LTD [2020] ScotCS CSOH_100 (15 December 2020)

BRIGGS OF BURTON PLC AGAINST DOOSAN BABCOCK LTD [2020] ScotCS CSOH_100 (15 December 2020)

Rectification was refused because, although the heads of terms accurately reflected the parties' common intention at the time they were agreed, the subsequent negotiation and execution of the sub-lease and missives demonstrated that the parties did not have a continuing common intention to give effect to the heads of terms at the date of the formal documents. The defender's instructions to its solicitors to depart from the heads of terms, the clear drafting changes, and the absence of any objection or query from the pursuer's solicitors regarding those changes, indicated that the formal documents were not intended to give effect to the heads of terms. The statutory test for rectification...

Citation
[2020] ScotCS CSOH_100
Parties
Pursuer: Briggs of Burton PLC; Defender: Doosan Babcock Limited
Jurisdiction
Scotland
Judgment Date
15 December 2020
Procedural Posture
Rectification Action (commercial Lease) / Outer House, Court of Session, Proof Before Answer, Final Judgment
Outcome
Rectification refused; counterclaim for payment upheld.
Legal Topics
Rectification of Documents, Interpretation of Contracts, Non Binding Heads of Terms, Break Clauses in Leases, Maintenance Obligations in Leases
Contract Law Property Law Rectification of Documents Interpretation of Contracts Non Binding Heads of Terms Break Clauses in Leases Maintenance Obligations in Leases

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Parties

Briggs of Burton PLC

Pursuer

Doosan Babcock Limited

Defender

Procedural Posture

Rectification Action (commercial Lease) / Outer House, Court of Session, Proof Before Answer, Final Judgment

Legal Issues

  1. 1 Whether the sub-lease should be rectified to reflect the parties' common intention as expressed in non-binding heads of terms
  2. 2 Whether a change in subjective intention by one party, not communicated to the other, precludes rectification under section 8(1)(a) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985
  3. 3 Whether the formal sub-lease was intended to give effect to the prior heads of terms

Ratio Decidendi

Rectification was refused because, although the heads of terms accurately reflected the parties' common intention at the time they were agreed, the subsequent negotiation and execution of the sub-lease and missives demonstrated that the parties did not have a continuing common intention to give effect to the heads of terms at the date of the formal documents. The defender's instructions to its solicitors to depart from the heads of terms, the clear drafting changes, and the absence of any objection or query from the pursuer's solicitors regarding those changes, indicated that the formal documents were not intended to give effect to the heads of terms. The statutory test for rectification...

Court Disposition

Rectification refused; counterclaim for payment upheld.

Orders

  • Refusal of pursuer's crave for rectification of the sub-lease and declarator of valid break notice.
  • Decree for payment in favour of the defender on the counterclaim for rent, electricity, business rates, and service charges to 8 September 2019, with interest.