Preferred Mortgages Ltd v Thomson Shanks & Ors [2008] ScotCS CSOH_23 (07 February 2008)

Preferred Mortgages Ltd v Thomson Shanks & Ors [2008] ScotCS CSOH_23 (07 February 2008)

The pursuers have set out a relevant case of breach of contract and negligence against the third defender, who is potentially liable for the whole of the foreseeable losses resulting from his negligent advice. Joint and several liability is competent where both defenders contributed to a single loss, and the pursuers' averments are sufficient to proceed to proof before answer.

Citation
[2008] ScotCS CSOH_23
Parties
Pursuer: Preferred Mortgages Ltd; First Defender: Robert Thomson Shanks; Second Defender: Mark Robert Shanks; Third Defender: Andrew F. Dewar
Jurisdiction
Scotland
Judgment Date
07 February 2008
Procedural Posture
Commercial Action / Motion to Dismiss and Debate on Relevancy and Competency
Outcome
motion for dismissal refused; proof before answer allowed
Legal Topics
Solicitor's Duty of Care, Joint and Several Liability, Valuation Negligence, Loss Calculation, Mitigation of Damages
Contract Law Professional Negligence Delict Solicitor's Duty of Care Joint and Several Liability Valuation Negligence Loss Calculation Mitigation of Damages

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Parties

Preferred Mortgages Ltd

Pursuer

Robert Thomson Shanks

First Defender

Mark Robert Shanks

Second Defender

Andrew F. Dewar

Third Defender

Procedural Posture

Commercial Action / Motion to Dismiss and Debate on Relevancy and Competency

Legal Issues

  1. 1 Is joint and several liability competent where two defenders contribute to a single loss by separate breaches?
  2. 2 Is the pursuers' claim against the third defender relevant given the scope of the solicitor's duty of care?
  3. 3 Is the third defender potentially liable for the whole loss sustained by the pursuers?

Ratio Decidendi

The pursuers have set out a relevant case of breach of contract and negligence against the third defender, who is potentially liable for the whole of the foreseeable losses resulting from his negligent advice. Joint and several liability is competent where both defenders contributed to a single loss, and the pursuers' averments are sufficient to proceed to proof before answer.

Court Disposition

motion for dismissal refused; proof before answer allowed

Orders

  • third defender's motion for dismissal refused
  • third defender's fourth plea in law repelled