Dunedin Independent Plc v. Welsh, [2004] ScotCS 97 (16 April 2004)

Dunedin Independent Plc v. Welsh, [2004] ScotCS 97 (16 April 2004)

The pursuers' claim for repetition fails due to lack of relevant and specific averments of bad faith or inducement, and because repetition is not the appropriate remedy for breach of contract or fraud in this context. Clause 13.2.2 of the Service Agreement is not irrelevant on the pleadings and may be enforceable, as its scope is not unreasonably wide when construed in context; the matter should proceed to proof before answer.

Citation
[2004] ScotCS 97
Parties
Pursuer: Dunedin Independent Plc; Defender: Kenneth Anderson Welsh
Jurisdiction
Scotland
Judgment Date
16 April 2004
Procedural Posture
Civil / Procedure Roll Debate on Relevancy and Specification of Pleadings
Outcome
Seventh plea-in-law for the pursuer repelled; averments in Article 6 of Condescendence refused probation; proof before answer allowed on Clause 13.2.2; case put out By Order for further procedure.
Legal Topics
Restrictive Covenants, Restraint of Trade, Compromise Agreements, Repetition (restitution), Damages, Confidential Information
Employment Law Contract Law Restrictive Covenants Restraint of Trade Compromise Agreements Repetition (restitution) Damages Confidential Information

Case Brief

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Parties

Dunedin Independent Plc

Pursuer

Kenneth Anderson Welsh

Defender

Procedural Posture

Civil / Procedure Roll Debate on Relevancy and Specification of Pleadings

Legal Issues

  1. 1 Whether the claim for repetition (restitution) of £7,250 under the Compromise Agreement is relevant and specific.
  2. 2 Whether Clause 13.2.2 of the Service Agreement constitutes an unreasonable restraint of trade and is unenforceable.

Ratio Decidendi

The pursuers' claim for repetition fails due to lack of relevant and specific averments of bad faith or inducement, and because repetition is not the appropriate remedy for breach of contract or fraud in this context. Clause 13.2.2 of the Service Agreement is not irrelevant on the pleadings and may be enforceable, as its scope is not unreasonably wide when construed in context; the matter should proceed to proof before answer.

Court Disposition

Seventh plea-in-law for the pursuer repelled; averments in Article 6 of Condescendence refused probation; proof before answer allowed on Clause 13.2.2; case put out By Order for further procedure.

Orders

  • Repel seventh plea-in-law for pursuer.
  • Refuse to admit averments in Article 6 of Condescendence to probation.