NDT Eye Ltd v Servtech Ltd [2004] ScotSC 64 (23 September 2004)

NDT Eye Ltd v Servtech Ltd [2004] ScotSC 64 (23 September 2004)

The defenders' counterclaim is competent as it arises out of the same contract and facts as the pursuers' claim, and joint and several liability is neither pleaded nor established; thus, it is not necessary to call other alleged wrongdoers. The matter should proceed to proof before answer.

Citation
[2004] ScotSC 64
Parties
Pursuer: N D T Eye Limited; Defender: Servtech Limited
Jurisdiction
Scotland
Judgment Date
23 September 2004
Procedural Posture
Civil / Interlocutory (debate on Preliminary Pleas)
Outcome
Pursuers' 3rd, 4th, 5th, and 6th pleas-in-law repelled; proof before answer allowed; expenses awarded as specified; debate not sanctioned for junior counsel.
Legal Topics
Counterclaim Competence, Implied Contractual Terms, Joint and Several Liability, Rule 19 Ordinary Cause Rules
Contract Law Delict (tort) Civil Procedure Counterclaim Competence Implied Contractual Terms Joint and Several Liability Rule 19 Ordinary Cause Rules

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 2 Authorities cited 2 Party arguments 2
Sign in to unlock

Parties

N D T Eye Limited

Pursuer

Servtech Limited

Defender

Procedural Posture

Civil / Interlocutory (debate on Preliminary Pleas)

Legal Issues

  1. 1 Whether the defenders can competently proceed by way of counterclaim for breach of implied contractual term and delict without calling other alleged joint wrongdoers
  2. 2 Whether Rule 19(1) of the Ordinary Cause Rules precludes the counterclaim in the absence of all alleged joint obligants
  3. 3 Whether the counterclaim arises out of the same matter as the pursuers' claim

Ratio Decidendi

The defenders' counterclaim is competent as it arises out of the same contract and facts as the pursuers' claim, and joint and several liability is neither pleaded nor established; thus, it is not necessary to call other alleged wrongdoers. The matter should proceed to proof before answer.

Court Disposition

Pursuers' 3rd, 4th, 5th, and 6th pleas-in-law repelled; proof before answer allowed; expenses awarded as specified; debate not sanctioned for junior counsel.

Orders

  • Repels Pursuers' 3rd, 4th, 5th, and 6th pleas-in-law
  • Allows parties a proof of their respective averments