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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> North Sea Equipment Rentals Inc v. Drilltech Services (North Sea) Ltd [2002] ScotCS 45 (15th February, 2002) URL: http://www.bailii.org/scot/cases/ScotCS/2002/45.html Cite as: [2002] ScotCS 45 |
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North Sea Equipment Rentals Inc v. Drilltech Services (North Sea) Ltd [2002] ScotCS 45 (15th February, 2002)
OUTER HOUSE, COURT OF SESSION |
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OPINION OF LORD MacLEAN in the cause NORTH SEA EQUIPMENT RENTALS INC Pursuers; against DRILLTECH SERVICES (NORTH SEA) LIMITED Defenders:
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Pursuers: A McKenzie, Paull & Williamsons
Defenders: R W J Anderson, Q.C., Ledingham Chalmers
15 February 2002
"For delivery by the defender to the pursuer's agents Tuboscope Vetco (UK) Limited, at Badentoy Park, Portlethen, Aberdeen the property specified in the schedule hereto within fourteen days or such other period as the Court shall appoint or, failing delivery, for payment by the defender to the pursuer of the sum of one million two hundred thousand pounds (£1,200,000) sterling with interest thereon at the rate of eight per centum per annum from 27 April 1994 until payment".
The schedule referred to is headed thus: "SCHEDULE OF ASSETS THE PROPERTY OF THE PURSUERS HELD BY THE DEFENDERS". It sets out the property in terms of quantity, description and serial numbers. On 3 June 1994 the defenders' solicitors accepted service of the summons and dispensed with the induciae. By 16 June 1994 the parties had entered into a Joint Minute agreeing certain matters in detail. Paragraph 4 of the Joint Minute provides:
"The defender shall arrange for the property identified in schedule 4 attached to said letter dated 2 June 1994 from Ledingham Chalmers to Paull & Williamsons to be returned from customers to the pursuer as soon as is reasonably practicable consistent with the terms of the contract with these customers. The defender confirms that to the best of his knowledge and belief that all the said property will be returned from customers to the pursuers within a reasonable period, being consistent with the terms of the contract with these customers".
"Ad interim interdicts the defenders or anyone acting on their behalf from using, contracting in relation to, disposing of, or otherwise intromitting with the property specified in the schedule hereto except in accordance with the terms of any subsisting contracts entered into between Bon Accord Tool and Supply Company (North Sea) Limited and their customers, or by delivery of said property to the pursuers' agents Tuboscope Vetco UK Limited at Badentoy Park, Portlethen, Aberdeen; finds the defenders liable to the pursuers in the expenses of the action to date and remits the account thereof, when lodged, to the Auditor of Court for taxation, Sists the cause for implementation of the agreement between parties contained in the Joint Minute No.11 of process".
What is of relevance in the debate I heard is that the Court sisted the cause to enable the agreement between the parties to be implemented. The Joint Minute containing the agreement made no mention of what was to happen to the action but it is in my opinion to be inferred from the terms of the interlocutor that parties wished to keep the action in being. In short, the agreement in the Joint Minute was not in substitution for the action. Indeed, it is to be noted that the defenders were found liable to the pursuers in the expenses of the action "to date".
"Shortly after the institution of the present proceedings an extra judicial agreement was reached. The terms of said agreement were incorporated in the Joint Minute, signed by the parties' respective counsel, which forms No.11 of process. Following said agreement certain items of equipment originally sought in the process were returned to the pursuers' agents. The items set out in the first conclusion hereof constitute the items originally sought but not yet returned".
I note that these averments are met with a blank denial in the defences. The pursuers' first plea is:
"The defender being unlawfully in possession of the pursuers' property, decree of delivery should be pronounced as concluded for".
The defender's first two pleas-in-law are in the following terms:
"(1) The conclusions of the summons having been exhausted by the Joint Minute for the parties executed in June 1994, the pursuers are barred from proceeding with the present action.
(2) The said Joint Minute executed in June 1994 representing the limit of the parties' contractual obligations and a period in excess of five years having elapsed since the execution of said contract, the present action is time barred".
I observe that there are no averments in support of the first plea-in-law for the defenders.