Moodiesburn House Hotel Ltd v Norwich Union Insurance Ltd & Anor [2001] ScotCS 301 (21 December 2001)

Moodiesburn House Hotel Ltd v Norwich Union Insurance Ltd & Anor [2001] ScotCS 301 (21 December 2001)

The pursuers' averments of waiver and personal bar are irrelevant and insufficient to prevent the first defenders from relying on breach of the FCEC. Actual knowledge of breach is required for waiver, and the pursuers' pleadings do not adequately aver such knowledge on the part of the first defenders. Furthermore, the pursuers' own pleadings admit that not all flues and ducting were cleaned monthly, amounting to a breach of the FCEC, which is a condition precedent to liability. Therefore, the claim for indemnity is irrelevant and the action against the first defenders must be dismissed.

Citation
[2001] ScotCS 301
Parties
Pursuer: Moodiesburn House Hotel Limited; First Defender: Norwich Union Insurance Limited; Second Defender: HSBC Insurance Brokers Limited
Jurisdiction
Scotland
Judgment Date
21 December 2001
Procedural Posture
Civil (insurance/contract) / Debate on Relevancy of Pleadings (outer House, Court of Session)
Outcome
Action against the first defenders dismissed; averments of waiver and personal bar excluded from probation.
Legal Topics
Waiver, Personal Bar (estoppel), Insurance Policy Conditions, Breach of Contract, Indemnity, Repudiation of Insurance Liability
Insurance Law Contract Law Scottish Civil Procedure Waiver Personal Bar (estoppel) Insurance Policy Conditions Breach of Contract Indemnity +1 more

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Parties

Moodiesburn House Hotel Limited

Pursuer

Norwich Union Insurance Limited

First Defender

HSBC Insurance Brokers Limited

Second Defender

Procedural Posture

Civil (insurance/contract) / Debate on Relevancy of Pleadings (outer House, Court of Session)

Legal Issues

  1. 1 Whether the pursuers' averments of waiver and personal bar are relevant and sufficient to prevent the first defenders from relying on breach of a policy condition (Frying and Cooking Equipment Condition, FCEC) to repudiate liability.
  2. 2 Whether the pursuers' pleadings admit breach of the FCEC, thus rendering their claim for indemnity irrelevant.

Ratio Decidendi

The pursuers' averments of waiver and personal bar are irrelevant and insufficient to prevent the first defenders from relying on breach of the FCEC. Actual knowledge of breach is required for waiver, and the pursuers' pleadings do not adequately aver such knowledge on the part of the first defenders. Furthermore, the pursuers' own pleadings admit that not all flues and ducting were cleaned monthly, amounting to a breach of the FCEC, which is a condition precedent to liability. Therefore, the claim for indemnity is irrelevant and the action against the first defenders must be dismissed.

Court Disposition

Action against the first defenders dismissed; averments of waiver and personal bar excluded from probation.

Orders

  • Repel the pursuers' second plea-in-law (waiver and personal bar) as irrelevant.
  • Exclude the relative averments from probation.