SCOTTISH PENSION FUND TRUSTEES LTD, RECLAIMING MOTION BY AGAINST MARSHALL ROSS & MUNRO & Ors [2018] ScotCS CSIH_39 (08 June 2018)

SCOTTISH PENSION FUND TRUSTEES LTD, RECLAIMING MOTION BY AGAINST MARSHALL ROSS & MUNRO & Ors [2018] ScotCS CSIH_39 (08 June 2018)

The pursuers' pleadings are sufficient to engage the transmission presumption, given continuous trading under the same name, uninterrupted business, and payments made. The amended pension fund rules created a contingent liability in 2003, capable of transmission to successor partnerships. The commercial judge erred in dismissing the action without inquiry into the facts. Prescription is not established on the pleadings, as payments were made within the relevant period.

Citation
[2018] ScotCS CSIH_39
Parties
Pursuer and Reclaimer: Scottish Pension Fund Trustees Ltd; First Defender and Respondent: Marshall Ross & Munro; Second Defender and Respondent: Charles J Bow; Third Defender and Respondent: Patricia E Grzybek
Jurisdiction
Scotland
Judgment Date
08 June 2018
Procedural Posture
Reclaiming Motion / Appeal Against Interlocutor Dismissing Action After Debate on Relevancy
Outcome
Reclaiming motion allowed; interlocutor recalled; proof before answer allowed.
Legal Topics
Transmission of Liabilities, Contingent Liabilities, Presumption of Liability, Partnership Succession, Prescription
Partnership Law Pension Law Contract Law Transmission of Liabilities Contingent Liabilities Presumption of Liability Partnership Succession Prescription

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Parties

Scottish Pension Fund Trustees Ltd

Pursuer and Reclaimer

Marshall Ross & Munro

First Defender and Respondent

Charles J Bow

Second Defender and Respondent

Patricia E Grzybek

Third Defender and Respondent

Procedural Posture

Reclaiming Motion / Appeal Against Interlocutor Dismissing Action After Debate on Relevancy

Legal Issues

  1. 1 Whether a contingent liability to make pension fund deficit contributions arose and could transmit to successor partnerships
  2. 2 Whether the transmission presumption applies to successive partnerships trading under the same name
  3. 3 Whether the pursuers' pleadings are sufficient to engage the presumption

Ratio Decidendi

The pursuers' pleadings are sufficient to engage the transmission presumption, given continuous trading under the same name, uninterrupted business, and payments made. The amended pension fund rules created a contingent liability in 2003, capable of transmission to successor partnerships. The commercial judge erred in dismissing the action without inquiry into the facts. Prescription is not established on the pleadings, as payments were made within the relevant period.

Court Disposition

Reclaiming motion allowed; interlocutor recalled; proof before answer allowed.

Orders

  • Paragraphs 2 to 4 of the commercial judge’s interlocutor of 1 February 2018 recalled.
  • Proof before answer allowed.