Eastern Motor Company Limited Against (1) Colin Donald Grassick, (2) David Douglas Grassic And (3) Jane Hartree Haig
| Jurisdiction | Scotland |
| Judge | Lord Pentland,Lord Woolman,Lord President |
| Neutral Citation | [2021] CSIH 67 |
| Docket Number | CA31/20 |
| Date | 17 December 2021 |
| Court | Court of Session |
| Published date | 17 December 2021 |
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2021] CSIH 67
CA31/20
Lord President
Lord Woolman
Lord Pentland
OPINION OF THE COURT
delivered by LORD PEN TLAND
in the Reclaiming Motion
in the cause
EASTERN MOTOR COMPANY LIMITED
Pursuers and Respondents
against
(1) COLIN DONALD GRASSICK, (2) DAVID DOUGLAS GRASSICK and (3) JANE
HARTREE HAIG
Defenders and Reclaimers
Pursuers and Respondents: Dean of Faculty (Dunlop, QC); Addleshaw Goddard
Defenders and Reclaimers: Simpson, QC, R Mitchell, sol adv; Brodies LLP
17 December 2021
Introduction
[1] This reclaiming motion (appeal) raises two questions. The first concerns the
circumstances in which the Court of Session is entitled to interfere with the decision of an
expert appointed under a contr actual dispute resolution procedure, where parties have
agreed to be bound by the expert’s determination. The second relates to the competency of
challenging the decision of such an expert ope exceptionis (literally “by force of exception”) in
2
the defences to the action to enforce the expert’s decision. The pursuers, who seek to enforce
the expert’s decision, contend that the defenders’ challenges to the expert’s determination
could competently h ave been brou ght only by an application for judicial review.
The core facts
The parties’ contract
[2] On 1 August 2017 the parties entered into a Share Purchase Agreement for the sale
by the defenders to the pursuers of the entir e issued share capital of Grassick’s Garage
Limited. Grassick’s principal business was owning and operating a BMW and Mini car
franchise dealership in Perth .
[3] The agreed sale price was to be the Ordinary Share Consideration, which was
defined in the agreement as being the aggregate of four elements. The relevant element for
the purposes of this case is the “Actual Net Asset Value”. The Actual Net Asset Value was
to be ascertain ed by means of the preparation of Completion Accounts; these were defined
as meaning the balance sheet of the company as at close of business on 30 June 2017. That
date was referred to in th e agreement as the “Locked Box Date”. The sum of £250,000 was
paid by the pursuers into a retention account with the Royal Bank of Scotland pending
agreement or expert determination of the Completion Accounts.
The relevant contractual provisions
[4] Paragraph 6.1 of Part 7 of the Schedule to the Share Purchase Agreement provided as
follows:
“The Completion Accounts will be prepared in accordance with, and in the order
shown below:
(a) the specific account ing policies set out in Section D of this Part 7 of the
Schedule;
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2 cases
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Eastern Motor Company Ltd v Grassick
... [2021] CSIH 67 First Division Lord Tyre No 9 Eastern Motor Co Ltd and Grassick Cases referred to: Amey Birmingham Highways Ltd v Birmingham City Council [2018] EWCA Civ 264; [2018] BLR 225; [2018] CILL 4105 Arnold v Britton [2015] UKSC 36; [2015] AC 1619; [2015] 2 WLR 1593; [2016] 1 All ER......
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Appeal In The Cause Coulters Property Limited Against Mark Ellison Coulter
...stands until reduced (Brown v Hamilton District Council 1983 SC (HL) 1 at p 45-46; Eastern Motor Company Limited v Grass ick 7 & Ors [2021] CSIH 67, para [62]). The appellant has a remedy. At an earlier stage he could have protested the valuation by way of judicial review or even by reducti......