Heather Capital Ltd & Anor v Levy & McRae & Ors [2017] ScotCS CSIH_19 (28 February 2017)

Heather Capital Ltd & Anor v Levy & McRae & Ors [2017] ScotCS CSIH_19 (28 February 2017)

On the pleadings, it cannot be determined whether prescription extinguished the obligations, as disputed issues of awareness of loss, reasonable diligence, and error induced require proof. Sufficient averments exist to entitle HC to proof before answer in both cases, all pleas standing.

Citation
[2017] ScotCS CSIH_19
Parties
Pursuer and Reclaimer: Heather Capital Limited (in liquidation); Pursuer and Reclaimer: Paul Duffy (as liquidator); Defender and Respondent: Levy & McRae; Defender and Respondent: Burness Paull LLP
Jurisdiction
Scotland
Judgment Date
28 February 2017
Procedural Posture
Civil Appeal / Reclaiming Motion and Cross Appeal; Interlocutors Recalled, Proof Before Answer Ordered
Outcome
Interlocutors recalled; proof before answer at large, all pleas standing; remit to Outer House; expenses continued.
Legal Topics
Prescription, Extinction of Obligations, Breach of Trust, Breach of Contract, Negligence, Fiduciary Duty, Dishonest Assistance, Reasonable Diligence, Error Induced, Imputed Knowledge
Commercial Law Trust Law Contract Law Professional Negligence Company Law Prescription Extinction of Obligations Breach of Trust +7 more

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Parties

Heather Capital Limited (in liquidation)

Pursuer and Reclaimer

Paul Duffy (as liquidator)

Pursuer and Reclaimer

Levy & McRae

Defender and Respondent

Burness Paull LLP

Defender and Respondent

Procedural Posture

Civil Appeal / Reclaiming Motion and Cross Appeal; Interlocutors Recalled, Proof Before Answer Ordered

Legal Issues

  1. 1 Whether claims against solicitors for breach of trust, contract, negligence, fiduciary duty, and dishonest assistance are extinguished by prescription under the Prescription and Limitation (Scotland) Act 1973
  2. 2 Whether the pursuer was aware or could with reasonable diligence have been aware of loss within the prescriptive period
  3. 3 Whether error induced by conduct of the solicitors suspends the prescriptive period

Ratio Decidendi

On the pleadings, it cannot be determined whether prescription extinguished the obligations, as disputed issues of awareness of loss, reasonable diligence, and error induced require proof. Sufficient averments exist to entitle HC to proof before answer in both cases, all pleas standing.

Court Disposition

Interlocutors recalled; proof before answer at large, all pleas standing; remit to Outer House; expenses continued.

Orders

  • Recall interlocutor of Lord Tyre dated 6 November 2015
  • Recall interlocutor of Lord Doherty dated 31 August 2016