Sheriff allows boat builder’s action for damaged mould to proof based on possessory interest in property

About this case:

• Citation:
  [2025] SC KDY 98
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff Charles Lugton

Martin Maver raised the action against A Williamson Haulage Ltd seeking losses based on breach of contract and fault at common law. The defenders advanced a plea of no title and interest to sue on the basis that the pursuer was not the owner of the mould, which he had obtained by virtue of an earlier agreement to supply boats for another company.

The case was heard by Sheriff Charles Lugton at Kirkcaldy Sheriff Court, with Way, advocate, appearing for the pursuer and Anderson, advocate, for the defender.

Insufficient to convey title

In around July 2020, the pursuer engaged the defenders to transport an 8x4 metres boat mould from his premise in Anstruther to premises at Leven, which was damaged in transit. This mould was one of two provided to the pursuer by a marine engineer and company director, Mr Coe, under an arrangement whereby the pursuer would use them to build boats and pay Mr Coe’s company, Twinseas, a fee for each boat built using the moulds. The moulds remained under the ownership of another of Mr Coe’s companies, Marusya, by virtue of two agreements concluded by the pursuer and Mr Coe in 2017 and 2018 respectively.

Difficulties arose with the pursuer’s arrangement with Mr Coe, who in 2020 engaged solicitors to seek to recover the moulds from the pursuer. Initial writ was served on the pursuer in August 2021 on behalf of Twinseas, however final decree was not taken in the action. Mr Coe took no further action to recover the moulds after he sold Twinseas in 2021, concluding that it was not worth doing so. The moulds had since remained in the pursuer’s possession, albeit he was unable to make further use of them.

For the pursuer it was submitted that the substance of the claim bore upon the contract with the defenders, of which an implied term was that the defenders would exercise reasonable skill and competence. He had a possessory interest in the mould when it was damaged, as by virtue of the agreement the mould was in his sole possession and control, and he was using it for business purposes.

The defenders submitted that the agreement with Mr Coe conferred only limited contractual rights on the pursuer, which were insufficient to convey title and interest as he had failed to perform his obligations under the contract. In respect of the delictual case, the pursuer held mere contractual obligations rather than possessory title and his remedy was to obtain an assignation from Marusya or Twinseas.

Unequivocal statement of law

In determining that the pursuer was not the owner of the mould, Sheriff Lugton said of his account of how he came to own it: “The pursuer’s position relies in part on the accounts which he and his witnesses gave of travelling to Poole to make a cash payment of £35,000 to Mr Coe. I have no difficulty in rejecting their evidence on this point. [The pursuer’s witnesses] gave incredible and unreliable accounts of the episode, which were fatally undermined by the production of their prior sworn statements. More generally, the whole episode had an air of implausibility.”

He added: “It is unfortunate that no documentary evidence of [ownership] is available, although this may be explained at least in part by the fact that neither Marusya nor Mr Coe is a party to the action. But ultimately, I am prepared to find, on the balance of probabilities, that Marusya is the owner of the moulds, given that this is stated expressly in the agreements under which the pursuer took and retained possession of them.”

Considering the contractual case, Sheriff Lugton said: “Scottish Enterprise v Archibald Russel of Denny Ltd (2002) is authority for the proposition that a party pursuing a contractual claim has title and interest to sue. It follows that the pursuer has title and interest to sue by virtue of the parties’ contract. The arguments advanced on the defenders’ behalf cannot stand in the face of this unequivocal and binding statement of the law.”

Moving to the delictual case, he added: “It seems to me that the present case is most closely analogous to the degree of possession that was apparent in the facts of North Scottish Helicopters Ltd v United Technologies Corp (1988), which involved possession of property held under leases. Counsel for the defenders submits that the present case is distinguishable, as the agreement under which the pursuer holds the mould is not a lease or contract of hire. But leaving aside the agreed mode of payment, what the agreement has in common with a lease is that the pursuer is to have possession and use of the mould for an extended period.”

Having determined that the pursuer had a possessory title to the mould and therefore the defenders owed him a duty of care, the defenders’ pleas on title and interest to sue were repelled.