BSA International SA v Irvine & Ors [2010] ScotCS CSOH_12 (28 January 2010)

BSA International SA v Irvine & Ors [2010] ScotCS CSOH_12 (28 January 2010)

The claim for breach of warranty, as now formulated, was contingent at the time of notice because it depended on the OFT serving a Statement of Objections. The claim was therefore not time-barred, as proceedings were commenced within nine months of the claim ceasing to be contingent. However, for the pursuer to succeed on the merits, it must establish not only that the warrantors were aware of the facts leading to OFT action, but also that they were or ought reasonably to have been aware those facts might lead to such action. The pursuer's pleadings lacked sufficient specification on this point.

Citation
[2010] ScotCS CSOH_12
Parties
Pursuer: B.S.A. International S.A.; Defender: Hugh McLelland Irvine; Defender: John Alastair Irvine; Defender: Douglas Forbes Irvine
Jurisdiction
Scotland
Judgment Date
28 January 2010
Procedural Posture
Commercial Action (damages for Breach of Warranty/negligent Misrepresentation) / Further Opinion After Debate on Time Bar and Relevancy
Outcome
Case put out By Order for further procedure; no final decree issued.
Legal Topics
Share Purchase Agreement, Breach of Warranty, Negligent Misrepresentation, Contractual Time Bar, Competition Act 1998, Damages
Contract Law Competition Law Share Purchase Agreement Breach of Warranty Negligent Misrepresentation Contractual Time Bar Competition Act 1998 Damages

Case Brief

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Parties

B.S.A. International S.A.

Pursuer

Hugh McLelland Irvine

Defender

John Alastair Irvine

Defender

Douglas Forbes Irvine

Defender

Procedural Posture

Commercial Action (damages for Breach of Warranty/negligent Misrepresentation) / Further Opinion After Debate on Time Bar and Relevancy

Legal Issues

  1. 1 Whether the claim for breach of warranty is time-barred under the SPA's contractual limitation provisions
  2. 2 Proper construction of 'contingent liability' in the SPA for time-bar purposes
  3. 3 Specification required for averments of knowledge under a competition warranty

Ratio Decidendi

The claim for breach of warranty, as now formulated, was contingent at the time of notice because it depended on the OFT serving a Statement of Objections. The claim was therefore not time-barred, as proceedings were commenced within nine months of the claim ceasing to be contingent. However, for the pursuer to succeed on the merits, it must establish not only that the warrantors were aware of the facts leading to OFT action, but also that they were or ought reasonably to have been aware those facts might lead to such action. The pursuer's pleadings lacked sufficient specification on this point.

Court Disposition

Case put out By Order for further procedure; no final decree issued.

Orders

  • Case to be put out By Order to discuss future procedure and allow pursuer to address specification issues.