McCLURE NAISMITH LLP & Anor v HARLEY HADDOW PARTNERSHIP & Ors [2017] ScotCS CSOH_125 (26 September 2017))

McCLURE NAISMITH LLP & Anor v HARLEY HADDOW PARTNERSHIP & Ors [2017] ScotCS CSOH_125 (26 September 2017))

The obligations founded upon in the adjustments of 6 April 2017 are not the same as those previously pled; they are separate and distinct breaches. Accordingly, these claims are prescribed, as the five-year period began at practical completion and expired before the adjustments. The pursuers' case regarding air conditioning noise lacks adequate specification, but they may be given an opportunity to provide fair notice.

Citation
[2017] ScotCS CSOH_125
Parties
Pursuer: McCLURE NAISMITH LLP; Pursuer: THISTLE PROPERTY HOLDING COMPANY LIMITED; Defender: HARLEY HADDOW PARTNERSHIP; Defender: HUGH JAMES EDWARD HENDERSON; Defender: CHRISTOPHER JOHN MacLAREN; Defender: MARK JONATHAN LAWLER
Jurisdiction
Scotland
Judgment Date
26 September 2017
Procedural Posture
Ordinary Action (commercial Roll) / Debate on Prescription and Relevancy
Outcome
Claims in adjustments of 6 April 2017 (except air conditioning) are prescribed and cannot proceed; air conditioning claim may be further specified.
Legal Topics
Prescription, Collateral Warranty, Duty of Care, Breach of Contract, Damages
Contract Law Construction Law Professional Negligence Prescription Collateral Warranty Duty of Care Breach of Contract Damages

Case Brief

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Parties

McCLURE NAISMITH LLP

Pursuer

THISTLE PROPERTY HOLDING COMPANY LIMITED

Pursuer

HARLEY HADDOW PARTNERSHIP

Defender

HUGH JAMES EDWARD HENDERSON

Defender

CHRISTOPHER JOHN MacLAREN

Defender

MARK JONATHAN LAWLER

Defender

Procedural Posture

Ordinary Action (commercial Roll) / Debate on Prescription and Relevancy

Legal Issues

  1. 1 Whether the pursuers' claims for breach of contract are prescribed under the Prescription and Limitation (Scotland) Act 1973
  2. 2 Whether the adjustments of 6 April 2017 introduce new claims or merely further specification of existing claims
  3. 3 Adequacy of specification regarding air conditioning noise claims

Ratio Decidendi

The obligations founded upon in the adjustments of 6 April 2017 are not the same as those previously pled; they are separate and distinct breaches. Accordingly, these claims are prescribed, as the five-year period began at practical completion and expired before the adjustments. The pursuers' case regarding air conditioning noise lacks adequate specification, but they may be given an opportunity to provide fair notice.

Court Disposition

Claims in adjustments of 6 April 2017 (except air conditioning) are prescribed and cannot proceed; air conditioning claim may be further specified.

Orders

  • Case to be put out by order to discuss terms of interlocutor and further procedure.
  • Pursuers to be given opportunity to provide fair notice regarding air conditioning noise claim.