Janice Halvorson Against Persimmon Homes Limited
| Jurisdiction | Scotland |
| Judge | Sheriff Peter J. Braid |
| Neutral Citation | [2018] SC EDIN 40 |
| Court | Sheriff Court |
| Docket Number | A629/17 |
| Date | 02 June 2018 |
| Published date | 02 July 2018 |
SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH
[2018] SC EDIN 40
A629/17
JUDGMENT OF SHERIFF PETER J BRAID
in the cause
JANICE HALVORSON, residing at 19 Whitehouse Way, Gorebridge, EH23 4BF
Pursuer
against
PERSIMMON HOMES LIMITED, a company incorporated under the Companies Acts
(Company Number 04108747) and having their registered office at Persimmon House,
Fulford, York, YO10 4FE
Defenders
Pursuer: Welsh;
Defenders: McCormick;
Edinburgh, 28 June 2018
The Sheriff, having resumed consideration of the cause, sustains the defender’s first plea in
law to the extent of refusing to admit to probation the following of the pursuer’s averments:
(1) the whole of article 12 of condescendence; (2) the averment in article 11.1 of
condescendence that: “It was an implied term of the missives that the garden ground
pertaining to the property would be conveyed to the pursuer in a condition that was fit for
the purpose for which the garden ground would reasonably be used by the pursuer; (3) the
averment in each of articles 12.1 and 12.2 that: “Reference is made to regulations 5, 6, 7 and 8
of the Unfair Contract Terms in Consumer Contracts Regulations 1999 and schedule 2
thereto”; quoad ultra, reserves all pleas in law; allows parties a proof before answer thereon
on a date to be afterwards fixed; assigns 30 July 2018 at 10.00am within the Sheriff Court
2
House, 27 Chambers Street, Edinburgh as a hearing on expenses and as a procedural hearing
to fix the date of the proof and to assign a pre-proof hearing.
NOTE
Introduction
[1] In this action, the pursuer seeks damages of £25,000 from the defender, from whom
she purchased a new-build house in 2012, conform to missives dated 6, 25 and 26 September
2012. The action is founded upon both breach of contract and delict. The pursuer’s main
(although not her only) complaint is that her garden is waterlogged to the extent it is
unusable, the current waterlogging said to have been caused by drainage work carried out
by the defender in 2014. The pursuer avers that she has sustained loss as a result.
The debate
[2] A debate took place before me on 9 May 2016. Mr Welsh, advocate, appeared for the
pursuer; and Ms McCormick, solicitor, for the defender. The debate came to focus on four
main issues, as follows:-
i whether the defender owed the pursuer a duty of care not to cause her
economic loss (the first issue);
ii whether it was an implied term of the missives that the garden
1
be fit for
purpose (the second issue);
iii whether the action is barred by passage of time by virtue of a non-
supersession clause in the missives (the third issue);
1
Originally, the pursuer contended for an implied term regarding the fitness for pu rpose of the whole
subjects, but in the course of the debate, counsel moved to amend the pleadings s o as to restrict the
implied term to the fitness for purpose of the garden, which motion was granted uno pposed.
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