McIntosh Ltd v Balfour Beatty Group Ltd & Anor [2006] ScotCS CSOH_197 (21 December 2006)

McIntosh Ltd v Balfour Beatty Group Ltd & Anor [2006] ScotCS CSOH_197 (21 December 2006)

The pursuers did not have title to sue at the date of raising the action because there was no valid assignation of the partnership's rights under the Works Contract to the company prior to the action, and subsequent assignation cannot cure this defect. The company acted only as agent for the partnership, not as assignee. There was no clear representation or reliance to found personal bar, and the pursuers, not being parties to the Management Contract, cannot challenge the final certificate under it. The interlocking nature of the contracts does not override the rules of privity of contract.

Citation
[2006] ScotCS CSOH_197
Parties
Pursuer: Laurence McIntosh Limited; First Defender: Balfour Beatty Group Limited; Second Defender: The Trustees of the National Library of Scotland
Jurisdiction
Scotland
Judgment Date
21 December 2006
Procedural Posture
Commercial Action (construction Contract Dispute) / Opinion Following Preliminary Proof Before Answer on Title to Sue and Personal Bar
Outcome
Pursuers' case on title to sue and personal bar rejected; pursuers lack title to sue and cannot challenge the final certificate.
Legal Topics
Title to Sue, Assignation of Contractual Rights, Privity of Contract, Personal Bar (estoppel), Novation, Agency, Reduction of Certificate
Contract Law Commercial Law Construction Law Title to Sue Assignation of Contractual Rights Privity of Contract Personal Bar (estoppel) Novation +2 more

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Parties

Laurence McIntosh Limited

Pursuer

Balfour Beatty Group Limited

First Defender

The Trustees of the National Library of Scotland

Second Defender

Procedural Posture

Commercial Action (construction Contract Dispute) / Opinion Following Preliminary Proof Before Answer on Title to Sue and Personal Bar

Legal Issues

  1. 1 Whether the pursuers (company) have title to sue under the Works Contract originally entered into by the partnership
  2. 2 Whether the pursuers have title to challenge the final certificate issued under the Management Contract
  3. 3 Whether the second defenders are personally barred from denying the pursuers' title to sue

Ratio Decidendi

The pursuers did not have title to sue at the date of raising the action because there was no valid assignation of the partnership's rights under the Works Contract to the company prior to the action, and subsequent assignation cannot cure this defect. The company acted only as agent for the partnership, not as assignee. There was no clear representation or reliance to found personal bar, and the pursuers, not being parties to the Management Contract, cannot challenge the final certificate under it. The interlocking nature of the contracts does not override the rules of privity of contract.

Court Disposition

Pursuers' case on title to sue and personal bar rejected; pursuers lack title to sue and cannot challenge the final certificate.

Orders

  • Pursuers' case dismissed on the preliminary issues of title to sue and personal bar.