Smith & Anor v Messrs Lindsay & Kirk & Ors [1999] ScotCS 302 (16 December 1999)

The term 'enforceable' in the non-supersession clause refers to legal enforceability in general, not merely enforceability by specific implement; after the two-year period, the missives and all obligations cease to be legally enforceable, barring any action founded upon them commenced within that period.

Citation: [1999] ScotCS 302
Parties: Pursuer and Reclaimer: James Smith; Pursuer and Reclaimer: Mrs. Patricia Smith; Defenders and Respondents: Messrs. Lindsay & Kirk and Others
Jurisdiction: Scotland
Judgment Date: 16 December 1999
Procedural Posture: Reclaiming Motion / Appeal From Dismissal After Procedure Roll Debate
Outcome: Lord Ordinary's interlocutor recalled; defenders' first plea-in-law repelled; proof before answer allowed.
Legal Topics: Non Supersession Clause, Breach of Contract, Interpretation of Enforceability, Solicitor Liability

Contract Law Professional Negligence Conveyancing Non Supersession Clause Breach of Contract Interpretation of Enforceability Solicitor Liability

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Parties

James Smith

Pursuer and Reclaimer

Mrs. Patricia Smith

Pursuer and Reclaimer

Messrs. Lindsay & Kirk and Others

Defenders and Respondents

Procedural Posture

Reclaiming Motion / Appeal From Dismissal After Procedure Roll Debate

Legal Issues

1 Interpretation of 'enforceable' in non-supersession clause
2 Whether pursuers could sue for damages after two-year period
3 Scope of solicitor liability for failure to raise action

Ratio Decidendi

Court Disposition

Lord Ordinary's interlocutor recalled; defenders' first plea-in-law repelled; proof before answer allowed.

Orders

Recall of Lord Ordinary's interlocutor
Repel defenders' first plea-in-law