"Lost and found" Creates A Bad Case Of Dèjá Vu For Railston Ltd

Peacock Group plc v Railston Ltd and WM Murchland & Company Ltd [2010] CSOH 173

Introduction

In 2001, the Peacock's store in Kilmarnock flooded when a mains water connection on the first floor failed. They raised a Court of Session action alleging that the loss and damage suffered was a result of a breach of the main contractors' contractual obligations to have carried out the shop fitting work with reasonable care and skill. The main contractors then, in turn, tabled an "indemnity" claim against their sub-contractors, bringing them into the action.

Before proceedings could fully get under way, in 2005 it came to light that after borrowing out the actual connector and copper piping in 2003 - the crucial piece of evidence - the pursuers' solicitors had lost it. On this basis, the action was dismissed by the judge who found that due to the loss of this evidence, "the prejudice to the third parties was so severe and irremediable, by reason of crucial primary