Reclaiming Motion by Nadeem Sarwar against Phlo Technologies LTD and others (Court of Session) [2026] CSIH 20 (22 April 2026)

Reclaiming Motion by Nadeem Sarwar against Phlo Technologies LTD and others (Court of Session) [2026] CSIH 20 (22 April 2026)

The question of whether the Founder waived his rights or was personally barred from enforcing them is fact sensitive and cannot be determined without hearing evidence. The pleadings do not unequivocally establish abandonment of rights or reliance by the respondents. The commercial judge erred in dismissing the action at debate; proof before answer is required.

Citation
[2026] CSIH 20
Parties
Pursuer and Reclaimer: Nadeem Sarwar; Defender and Respondent: Phlo Technologies Limited; Defender and Respondent: Adam Roderick Hunter; Defender and Respondent: Aidan MacMillan; Defender and Respondent: Paul Munn; Defender and Respondent: Alistair Murray
Jurisdiction
Scotland
Judgment Date
22 April 2026
Procedural Posture
Commercial Action (reclaiming Motion) / Appeal From Dismissal at Debate, Interlocutor Recalled, Proof Before Answer Ordered
Outcome
Reclaiming motion allowed; interlocutor recalled; proof before answer ordered.
Legal Topics
Waiver, Personal Bar, Service Agreements, Warranties, Declarator, Interdict, Shareholder Rights
Contract Law Company Law Employment Law Waiver Personal Bar Service Agreements Warranties Declarator +2 more

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Parties

Nadeem Sarwar

Pursuer and Reclaimer

Phlo Technologies Limited

Defender and Respondent

Adam Roderick Hunter

Defender and Respondent

Aidan MacMillan

Defender and Respondent

Paul Munn

Defender and Respondent

Alistair Murray

Defender and Respondent

Procedural Posture

Commercial Action (reclaiming Motion) / Appeal From Dismissal at Debate, Interlocutor Recalled, Proof Before Answer Ordered

Legal Issues

  1. 1 Whether the commercial judge was entitled to dismiss the action at debate without hearing evidence on waiver and personal bar
  2. 2 Whether warranties given in a subscription agreement constituted waiver or personal bar of rights under service agreements

Ratio Decidendi

The question of whether the Founder waived his rights or was personally barred from enforcing them is fact sensitive and cannot be determined without hearing evidence. The pleadings do not unequivocally establish abandonment of rights or reliance by the respondents. The commercial judge erred in dismissing the action at debate; proof before answer is required.

Court Disposition

Reclaiming motion allowed; interlocutor recalled; proof before answer ordered.

Orders

  • Recall the commercial judge's interlocutors of 16 July 2025.
  • Allow proof before answer on amended pleadings.