THE COAL AUTHORITY, RECLAIMING MOTION - THE COAL AUTHORITY AGAINST PEGASUS FIRE PROTECTION COMPANY LIMITED [2019] ScotCS CSIH_12 (06 March 2019)

THE COAL AUTHORITY, RECLAIMING MOTION - THE COAL AUTHORITY AGAINST PEGASUS FIRE PROTECTION COMPANY LIMITED [2019] ScotCS CSIH_12 (06 March 2019)

The pursuers' averments, if proved, are sufficient to allow a proof before answer on whether the defenders are contractually bound to indemnify the pursuers for remedial costs arising from subsidence damage, as the correspondence and conduct between the parties (and their agents) could be construed as incorporating the standard indemnity into the permit(s) for treatment works. The alternative (esto) case based on breach of permit conditions is irrelevant and excluded from probation.

Citation
[2019] ScotCS CSIH_12
Parties
Pursuers and Reclaimers: The Coal Authority; Defenders and Respondents: Pegasus Fire Protection Company Limited
Jurisdiction
Scotland
Judgment Date
06 March 2019
Procedural Posture
Civil Appeal (reclaiming Motion) / Appeal From Commercial Judge's Dismissal, Seeking Proof Before Answer
Outcome
Reclaiming motion allowed; commercial judge's interlocutor recalled; proof before answer allowed except as to the pursuers' esto case and fourth plea-in-law, which are excluded/repelled.
Legal Topics
Indemnity Clauses, Agency, Mining Rights, Statutory Duties Under Coal Mining Subsidence Act 1991, Retrospective Permits, Interpretation of Contractual Documents
Contract Law Property Law Statutory Liability Indemnity Clauses Agency Mining Rights Statutory Duties Under Coal Mining Subsidence Act 1991 Retrospective Permits +1 more

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Parties

The Coal Authority

Pursuers and Reclaimers

Pegasus Fire Protection Company Limited

Defenders and Respondents

Procedural Posture

Civil Appeal (reclaiming Motion) / Appeal From Commercial Judge's Dismissal, Seeking Proof Before Answer

Legal Issues

  1. 1 Whether the defenders are contractually bound to indemnify the pursuers for remedial costs under the Coal Mining Subsidence Act 1991 as a result of works carried out at the site; Whether the correspondence and conduct between the parties (and their agents) incorporated the standard indemnity into the permit(s) for treatment works; Whether the pursuers' pleadings are sufficient to allow proof before answer on the existence of a contractual indemnity; Whether the alternative (esto) case based on breach of permit conditions is relevant.

Ratio Decidendi

The pursuers' averments, if proved, are sufficient to allow a proof before answer on whether the defenders are contractually bound to indemnify the pursuers for remedial costs arising from subsidence damage, as the correspondence and conduct between the parties (and their agents) could be construed as incorporating the standard indemnity into the permit(s) for treatment works. The alternative (esto) case based on breach of permit conditions is irrelevant and excluded from probation.

Court Disposition

Reclaiming motion allowed; commercial judge's interlocutor recalled; proof before answer allowed except as to the pursuers' esto case and fourth plea-in-law, which are excluded/repelled.

Orders

  • Recall the commercial judge’s interlocutor of 12 April 2018.
  • Exclude from probation the averments in the fourth article of condescendence from 'Esto...' to the end of the article.