17 November 2016
BTO’s ADVantage advocacy team has obtained an important and cost-effective result for its client at a debate (a strike-out hearing) in the Commercial Court of the Court of Session. The case concerned the supply of consumer data for use by an energy supplier’s call centres, with a view to persuading customers to change energy supplier. BTO acted for the data supplier.
BTO’s Head of Commercial Dispute Resolution, Tony Jones, appeared alone as Solicitor Advocate for the data supplier, accompanied by a junior solicitor. The other party was represented by both Senior and Junior counsel, backed by an in-house solicitor from the energy company as well as two solicitors from a law firm.
The energy supplier tried to argue that an “entire agreement” clause in the contract with the data supplier, which excluded evidence of what the parties said and did before they entered into the contract, nevertheless allowed the energy supplier to lead evidence of what the data supplier had done after the contract.
BTO’s Tony Jones successfully argued that this inconsistent approach was not allowed under Scots law and that large parts of the energy company’s case should be struck out. The judge, Lord Tyre, agreed. He ruled that an “entire agreement” clause in a contract excluded evidence of any common understanding not obvious on the face of the contract.
As well as demonstrating the cost effectiveness of solicitor advocate representation, this case demonstrates how in appropriate situations a legal debate can dramatically reduce the future cost and duration of a litigation, by limiting the issues about which evidence can be led. The decision whether to go to debate or to an evidential hearing is the sort of tactical decision upon which the ADVantage team bring its experience to bear on a daily basis.
Lord Tyre’s Opinion can be found here.
Contact: Tony Jones Partner & Solicitor Advocate E: email@example.com T. 0131 222 2939