Bristol & West Building Society v Messrs Aitken Nairn WS [1999] ScotCS 166 (7 July 1999)

Bristol & West Building Society v Messrs Aitken Nairn WS [1999] ScotCS 166 (7 July 1999)

The pursuers' pleadings disclosed a relevant case that the defenders may have breached their duty to report material changes to the title and adverse financial information, which could have prejudiced the security. The matter could not be resolved without proof, as the factual context and effect of the defenders' actions required evidence. The interlocutor dismissing the action was recalled and proof before answer allowed.

Citation
[1999] ScotCS 166
Parties
Pursuers and Reclaimers: Bristol & West Building Society; Defenders and Respondents: Messrs. Aitken Nairn, W.S.
Jurisdiction
Scotland
Judgment Date
07 July 1999
Procedural Posture
Reclaiming Motion (appeal) / Interlocutor Recall and Proof Before Answer
Outcome
Interlocutor of dismissal recalled; proof before answer allowed.
Legal Topics
Solicitor's Duties, Security Over Property, Conflict of Interest, Disclosure Obligations, Interpretation of Instructions
Contract Law Professional Negligence Property Law Solicitor's Duties Security Over Property Conflict of Interest Disclosure Obligations Interpretation of Instructions

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Parties

Bristol & West Building Society

Pursuers and Reclaimers

Messrs. Aitken Nairn, W.S.

Defenders and Respondents

Procedural Posture

Reclaiming Motion (appeal) / Interlocutor Recall and Proof Before Answer

Legal Issues

  1. 1 Whether the defenders breached express or implied contractual duties to the pursuers by failing to report material facts affecting the security and the borrower's financial position.
  2. 2 Whether the defenders' actions in altering the title and not including the barony title in the security constituted a breach of duty.
  3. 3 Whether the pursuers' pleadings disclosed a relevant case for proof before answer.

Ratio Decidendi

The pursuers' pleadings disclosed a relevant case that the defenders may have breached their duty to report material changes to the title and adverse financial information, which could have prejudiced the security. The matter could not be resolved without proof, as the factual context and effect of the defenders' actions required evidence. The interlocutor dismissing the action was recalled and proof before answer allowed.

Court Disposition

Interlocutor of dismissal recalled; proof before answer allowed.

Orders

  • Recall of interlocutor dated 24 March 1998.
  • Allow proof before answer of parties' averments.