Albert Bartlett And Sons (Airdrie) Ltd & Anor v. Gilchrist & Lynn Ltd & Anor [2010] ScotCS CSIH_33 (28 April 2010)

Albert Bartlett And Sons (Airdrie) Ltd & Anor v. Gilchrist & Lynn Ltd & Anor [2010] ScotCS CSIH_33 (28 April 2010)

A pursuer cannot be found liable in expenses to a party whom he has not caused to litigate by directing a case against them; the commercial judge erred in awarding expenses to third parties against the pursuers.

Citation
[2010] ScotCS CSIH_33
Parties
Pursuer and Reclaimer: Albert Bartlett & Sons (Airdrie) Ltd.; Defender and Respondent: Gilchrist & Lynn Ltd.; First Third Party: Atlas Ward Structures Ltd.; Third Party to the First Third Party: Briggs Amasco Ltd.
Jurisdiction
Scotland
Judgment Date
28 April 2010
Procedural Posture
Commercial Action (reclaiming Motion) / Appeal on Expenses Following Proof
Outcome
Reclaiming motion allowed in part; interlocutor amended to remove liability for third party expenses from pursuers.
Legal Topics
Expenses of Litigation, Third Party Procedure, Damages for Defective Construction
Civil Procedure Contract Law Expenses of Litigation Third Party Procedure Damages for Defective Construction

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Parties

Albert Bartlett & Sons (Airdrie) Ltd.

Pursuer and Reclaimer

Gilchrist & Lynn Ltd.

Defender and Respondent

Atlas Ward Structures Ltd.

First Third Party

Briggs Amasco Ltd.

Third Party to the First Third Party

Procedural Posture

Commercial Action (reclaiming Motion) / Appeal on Expenses Following Proof

Legal Issues

  1. 1 Whether pursuers should be liable for expenses of third parties against whom no case was directed
  2. 2 Proper allocation of expenses where third parties remain in process after settlement with defenders

Ratio Decidendi

A pursuer cannot be found liable in expenses to a party whom he has not caused to litigate by directing a case against them; the commercial judge erred in awarding expenses to third parties against the pursuers.

Court Disposition

Reclaiming motion allowed in part; interlocutor amended to remove liability for third party expenses from pursuers.

Orders

  • Delete from paragraph 2 of the interlocutor of 8 October 2009 the words imposing liability to first third party and third party to the first third party.
  • Recall the two interlocutors of 8 October 2009 decerning for payment by the pursuers to the first third party and the third party to the first third party.