Success in first ever virtual commercial proof at Court of Session
A modern strawberry farm (library image)
Allan McDougall Solicitors are pleased to report that on 13 August 2020 the Court of Session in Edinburgh issued a written decision in respect of its first ever virtual commercial proof. It found in our client’s favour. The issue to be determined by the court in the proof was a preliminary one, namely “jurisdiction”, i.e. whether the Scottish courts had power to consider the whole dispute. This required scrutiny of the communications between our client who runs a farming business and a company that supplied products to it.
Our client’s business includes growing strawberries, planted through polythene sheeting. However, our client claims that the sheeting provided by the supplier in August 2016 was not fit for purpose. As a result, the strawberry crops were affected and losses incurred.
Our client is seeking an award of damages for breach of contract. But first, a preliminary issue needed to be determined by the court: whether the supplier’s terms and conditions had been incorporated into the contract of sale. The supplier claimed that its terms and conditions were sent to our client and incorporated into the contract and that these give exclusive jurisdiction to the courts in England and Wales. These terms and conditions also sought to significantly reduce the supplier’s liability in the event of a claim such as this.
The judge found that although the terms and conditions had been sent by the supplier, they had not been received by our client, so had not been incorporated into the contract. He determined that, even if the terms had been received, the law requires that consent would need to have been given by our client to incorporation of the jurisdiction clause, which it was not. Therefore, the Scottish courts have power to consider the whole dispute. The case will now go back to the Court of Session to determine further procedure.
Sean White of Allan McDougall Solicitors is one of the instructing solicitors in this case. Read more about his experiences of the virtual courtroom: www.allanmcdougall.co.uk/news/n1121-the-virtual-courtroom
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