First lockdown proof in the Court of Session

First lockdown proof in the Court of Session

On Wednesday 18th June 2020, a three-day proof conducted with Cisco Webex concluded in the Commercial Court. It is the first proof to be heard in the Court of Session since the beginning of lockdown on 23 March.

The pursuer is a company which operates a strawberry farm near Arbroath. It contends that polythene sheeting bought from the defender, used to provide ground cover, was defective and allowed excessive weed growth. The pursuer avers that caused the yield of the strawberry plants to be significantly diminished over the course of their three to four-year lifespan

The preliminary proof before Lord Clark was on the question of whether the defender’s standard conditions were incorporated into the parties’ contract. The defender contended that a standard condition giving the English courts exclusive jurisdiction applied to the contract.

Evidence was led from eight witnesses over Webex, each joining from their homes or places of work. After administering the oath or affirmation, Lord Clark gave detailed directions to each witness on the witness’ responsibilities and how the hearing would be conducted by Webex.

Each witness was provided with a sealed bundle of hard copy productions and witness statements in advance of the proof and during the course of evidence, documents were exhibited to all participants on screen through Webex.

The hearing was available to members of the public, including interested members of the legal professions, to watch live through the Webex browser.

Lord Clark has made avizandum.

The pursuer was represented by David Massaro of Axiom Advocates. The defender was represented by Andrew Smith QC and Craig Murray, both of Compass Chambers.

A full account of the case is available here.

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