Brits v Kilcoyne & Co [2017] ScotCS CSOH_24 (16 February 2017)

Brits v Kilcoyne & Co [2017] ScotCS CSOH_24 (16 February 2017)

The defenders' pleadings only aver an extra-judicial statement of intention by the insurer, not an unequivocal and irrevocable waiver or unilateral promise; therefore, the pleadings are irrelevant and cannot be remitted to probation.

Citation
[2017] ScotCS CSOH_24
Parties
Pursuer: Christopher Brits; Defenders: Kilcoyne & Co
Jurisdiction
Scotland
Judgment Date
16 February 2017
Procedural Posture
Civil Action for Professional Negligence / Procedure Roll Discussion on Relevancy of Waiver Pleadings
Outcome
Pursuer's first plea in law upheld; defenders' averments on waiver deleted from probation.
Legal Topics
Waiver, Limitation of Actions, Mitigation of Loss, Causation
Professional Negligence Civil Procedure Waiver Limitation of Actions Mitigation of Loss Causation

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 10 Party arguments 2
Sign in to unlock

Parties

Christopher Brits

Pursuer

Kilcoyne & Co

Defenders

Procedural Posture

Civil Action for Professional Negligence / Procedure Roll Discussion on Relevancy of Waiver Pleadings

Legal Issues

  1. 1 Whether the defenders' pleadings on waiver are relevant and should be remitted to probation
  2. 2 Whether an extra-judicial statement by an insurer not to take a time bar plea constitutes an unequivocal and irrevocable waiver

Ratio Decidendi

The defenders' pleadings only aver an extra-judicial statement of intention by the insurer, not an unequivocal and irrevocable waiver or unilateral promise; therefore, the pleadings are irrelevant and cannot be remitted to probation.

Court Disposition

Pursuer's first plea in law upheld; defenders' averments on waiver deleted from probation.

Orders

  • Averments in answer 3 relating to waiver are deleted from probation.