Horban & Anor v. Torith Ltd [2007] ScotSC 63 (06 November 2007)

Horban & Anor v. Torith Ltd [2007] ScotSC 63 (06 November 2007)

The pursuers have pled a relevant and sufficiently specified case in contract to proceed to proof before answer. The case based on NHBC documentation is relevant as supporting the contract case. The delictual claim is irrelevant as it is for pure economic loss and does not meet the criteria for a delictual bridge as in Junior Books; it is excluded from probation.

Citation
[2007] ScotSC 63
Parties
Pursuer: David Horban; Pursuer: Mrs Lesley Horban; Defender: Torith Limited
Jurisdiction
Scotland
Judgment Date
06 November 2007
Procedural Posture
Civil / Debate on Relevancy and Specification Prior to Proof Before Answer
Outcome
Defenders' first plea in law sustained to the extent of excluding the delictual case from probation; proof before answer allowed on the contract case; all other pleas reserved; expenses reserved; cause certified as suitable for Counsel.
Legal Topics
Breach of Contract, Implied Terms, NHBC Warranty, Pure Economic Loss, Delictual Liability, Specification of Pleadings
Contract Law Delict (tort) Construction Law Breach of Contract Implied Terms NHBC Warranty Pure Economic Loss Delictual Liability +1 more

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Parties

David Horban

Pursuer

Mrs Lesley Horban

Pursuer

Torith Limited

Defender

Procedural Posture

Civil / Debate on Relevancy and Specification Prior to Proof Before Answer

Legal Issues

  1. 1 Whether a relevant case of contract exists between pursuers and defenders
  2. 2 Whether a relevant case based on NHBC documentation is pled
  3. 3 Whether a relevant case in delict (pure economic loss) is pled

Ratio Decidendi

The pursuers have pled a relevant and sufficiently specified case in contract to proceed to proof before answer. The case based on NHBC documentation is relevant as supporting the contract case. The delictual claim is irrelevant as it is for pure economic loss and does not meet the criteria for a delictual bridge as in Junior Books; it is excluded from probation.

Court Disposition

Defenders' first plea in law sustained to the extent of excluding the delictual case from probation; proof before answer allowed on the contract case; all other pleas reserved; expenses reserved; cause certified as suitable for Counsel.

Orders

  • Exclusion from probation of the pursuers' case based on delict (condescendence 12 and relevant words in condescendence 13 and first plea in law)
  • Proof before answer allowed on remaining issues