Melrose v Davidson & Robertson [1993] ScotCS CSIH_2 (05 February 1993)

Melrose v Davidson & Robertson [1993] ScotCS CSIH_2 (05 February 1993)

The disclaimer in the mortgage application form was a term of a contract relating to services between the pursuers and the building society. Section 16 of the Unfair Contract Terms Act 1977 applied, and since the defenders conceded it was not fair and reasonable to incorporate the exclusion clause, it was ineffective to exclude liability for negligence. The reclaiming motion was refused and the Lord Ordinary's interlocutor adhered to.

Citation
[1993] ScotCS CSIH_2
Parties
Pursuer: Melrose; Defender: Davidson and Robertson; Third Party: Alliance Building Society
Jurisdiction
Scotland
Judgment Date
05 February 1993
Procedural Posture
Civil / Reclaiming Motion (appeal)
Outcome
reclaiming motion refused; interlocutor of Lord Ordinary adhered to
Legal Topics
Exclusion Clauses, Negligence, Unfair Contract Terms Act 1977, Duty of Care, Mortgage Valuation, Third Party Rights
Contract Tort Consumer Protection Exclusion Clauses Negligence Unfair Contract Terms Act 1977 Duty of Care Mortgage Valuation +1 more

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Parties

Melrose

Pursuer

Davidson and Robertson

Defender

Alliance Building Society

Third Party

Procedural Posture

Civil / Reclaiming Motion (appeal)

Legal Issues

  1. 1 Whether a disclaimer in a mortgage application form excludes liability for negligence by valuers under the Unfair Contract Terms Act 1977 (Scotland)
  2. 2 Whether the disclaimer is a term of a contract to which section 16 of the Act applies
  3. 3 Whether the contract relates to services under section 15(2)(c) of the Act

Ratio Decidendi

The disclaimer in the mortgage application form was a term of a contract relating to services between the pursuers and the building society. Section 16 of the Unfair Contract Terms Act 1977 applied, and since the defenders conceded it was not fair and reasonable to incorporate the exclusion clause, it was ineffective to exclude liability for negligence. The reclaiming motion was refused and the Lord Ordinary's interlocutor adhered to.

Court Disposition

reclaiming motion refused; interlocutor of Lord Ordinary adhered to

Orders

  • sustain pursuers' fourth plea-in-law
  • allow proof before answer on remaining pleas