Citex Professional Services Limited v Kenmore Developments Limited
Case reference:
[2004] ScotCS 20
Wednesday, 28 January 2004
Key terms: Judicial review - pleadings - onus of proof - contributory negligence - interim remedy - mis-information - insurance
The defenders, Kenmore, engaged Citex to act as project managers. A dispute arose as a result of damage to the premises whilst being extended. The works had not been insured. An adjudicator decided that payment should be made to the defenders Kenmore. Citex attempted to challenge the decision by seeking judicial review. The challenge was dismissed on 5th October 2001. The pursuers then paid the defenders pursuant to a decree of the court.
Three issues arose in this action. First, that the pleadings were erroneous, second, that misinformation in the pleadings meant the onus of proof was reversed, and, finally, that there was also an issue of contributory negligence.
In respect of the pleadings, the first instance judge came to the view that he could not dismiss the principal action on the basis of the present pleading. There was, however, an allegation of mis-information in the pleadings, by the defenders, who in turn raised the issue of the onus of proof. Coutts QC referred to the judgment of Lord MacFadgen in City Inn Limited v Shepherd Construction Limited 2002 SL T781 where Lord MacFadgen said that “no part of the function of an adjudicator’s decision [is] to reverse the onus of proof in any arbitration or litigation to which the parties require to resort to obtain a final determination of the dispute between them”. Coutts QC also observed that an adjudicator’s decision was binding until finally determined. He therefore concluded that a pursuer in any action must prove its case, but that the question became irrelevant when enforcing.
Finally, Citex argued that Kenmore’s losses were in part caused by their own contributory negligence. The decision of Vesta v Butcher [1988] 2 AER 43 was considered. Coutts QC considered “one does not sue ‘in tort’ in Scotland but merely sues for damages,”. He considered that, subject to the issue of contributory negligence, Citex could not demand repayment of the sum. Nonetheless, he put the case out by order so that counsel for Citex could consider whether to amend.
Three issues arose in this action. First, that the pleadings were erroneous, second, that misinformation in the pleadings meant the onus of proof was reversed, and, finally, that there was also an issue of contributory negligence.
In respect of the pleadings, the first instance judge came to the view that he could not dismiss the principal action on the basis of the present pleading. There was, however, an allegation of mis-information in the pleadings, by the defenders, who in turn raised the issue of the onus of proof. Coutts QC referred to the judgment of Lord MacFadgen in City Inn Limited v Shepherd Construction Limited 2002 SL T781 where Lord MacFadgen said that “no part of the function of an adjudicator’s decision [is] to reverse the onus of proof in any arbitration or litigation to which the parties require to resort to obtain a final determination of the dispute between them”. Coutts QC also observed that an adjudicator’s decision was binding until finally determined. He therefore concluded that a pursuer in any action must prove its case, but that the question became irrelevant when enforcing.
Finally, Citex argued that Kenmore’s losses were in part caused by their own contributory negligence. The decision of Vesta v Butcher [1988] 2 AER 43 was considered. Coutts QC considered “one does not sue ‘in tort’ in Scotland but merely sues for damages,”. He considered that, subject to the issue of contributory negligence, Citex could not demand repayment of the sum. Nonetheless, he put the case out by order so that counsel for Citex could consider whether to amend.