Collins And Sons Ltd v. CGU Insurance Plc [2006] ScotCS CSIH_37 (22 June 2006)

Collins And Sons Ltd v. CGU Insurance Plc [2006] ScotCS CSIH_37 (22 June 2006)

The court held that the pursuers' right of entry under the sub-lease is not absolute and is conditional on the necessity of repairs, which is at least arguable to be an objective question. The interim order granted by the Lord Ordinary was inappropriate as it would have the effect of finally determining the substantive issue before trial. The defenders' case is not bound to fail and the matter should proceed to a full hearing.

Citation
[2006] ScotCS CSIH_37
Parties
Pursuers and Respondents: William Collins & Sons Limited; Defenders and Reclaimers: CGU Insurance plc
Jurisdiction
Scotland
Judgment Date
22 June 2006
Procedural Posture
Reclaiming Motion (appeal) / Interlocutory (interim Order)
Outcome
Reclaiming motion allowed; interim order recalled; case remitted for further procedure.
Legal Topics
Right of Entry, Repairing Obligations, Service Charge, Interim Orders, Arbitration Clauses
Landlord and Tenant Contract Law Civil Procedure Right of Entry Repairing Obligations Service Charge Interim Orders Arbitration Clauses

Case Brief

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Parties

William Collins & Sons Limited

Pursuers and Respondents

CGU Insurance plc

Defenders and Reclaimers

Procedural Posture

Reclaiming Motion (appeal) / Interlocutory (interim Order)

Legal Issues

  1. 1 Whether the pursuers have an absolute right to enter the premises to carry out repairs under the sub-lease.
  2. 2 Whether the necessity for repairs is to be judged subjectively by the pursuers or objectively by reference to the state of the premises.
  3. 3 Whether an interim order under section 47(2) of the Court of Session Act 1988 is competent in this context.

Ratio Decidendi

The court held that the pursuers' right of entry under the sub-lease is not absolute and is conditional on the necessity of repairs, which is at least arguable to be an objective question. The interim order granted by the Lord Ordinary was inappropriate as it would have the effect of finally determining the substantive issue before trial. The defenders' case is not bound to fail and the matter should proceed to a full hearing.

Court Disposition

Reclaiming motion allowed; interim order recalled; case remitted for further procedure.

Orders

  • Interim order recalled.
  • Case remitted to the Lord Ordinary to proceed as accords.