Supreme Court refuses appeal in Rogano restaurant dispute – Forthwell Limited v Pontegadea UK Limited [2026] UKSC 33
The Supreme Court has issued its decision in Forthwell Limited v Pontegadea UK Limited – [2026] UKSC 33. The case concerned liability for repairs and lost profits at the Rogano restaurant in Glasgow. Forthwell was the only Scottish appeal heard by the Supreme Court during its visit to Glasgow in May this year. Although the case settled shortly before the hearing, the Supreme Court heard the appeal given the wider importance of the issues raised. Giles Reid was junior counsel for the successful landlord.
In Forthwell the pursuer was the tenant of the Rogano restaurant. The restaurant suffered damage from water ingress in 2020. The pursuer brought a claim against the landlord seeking implement of the landlord’s obligation to restore the premises. The restaurant itself was operated by a third-party licensee in the pursuer’s company group, Lynnet Leisure (Rogano) Ltd. The pursuer also attempted to recover Lynnet’s loss of profit for the period in which the restaurant was closed. The defender argued that this loss was not recoverable in as a matter of law.
The decision concerns the circumstances in which a pursuer can recover a third party’s losses in an action for breach of contract. The Supreme Court, refusing the pursuer’s appeal from the Inner House, held that earlier Scottish authorities had been wrongly decided in holding that a pursuer generally may sue for a third party’s loss where that loss would otherwise not be recoverable (sometimes terms a legal ‘black hole’). The Supreme Court clarified that the ability to recover a third party’s loss is a narrow exception to the ordinary position where privity of contract prevents recovery. In Scots law, recovery will only be possible on the so-called ‘narrow ground’ where damage is caused to property that is intended to be transferred to a third party. The Supreme Court left open the question of whether recovery on the so-called ‘broader’ ground (where it is parties’ intention that a contract will confer a benefit on a third party) forms part of Scots law or English law.
The Supreme Court’s decision is a significant development of the law in this area. It is the first time that the Supreme Court or House of Lords has considered the recoverability of such losses in Scots law. It will be of considerable importance to those advising on breaches of contract and, in particular, on claims involving damage to property.
Ampersand’s James McConnell K.C. acted for the defenders in the latest round of this long-running litigation. The case came before the Sheriff Appeal Court for determination of what remained of the appeal (part of it having been refused as incompetent).
The residue of the appeal was refused. The Sheriff Appeal Court concluded that the pursuer’s pleadings did not allow him to lead evidence about a case of negligent misdiagnosis, and rejected his criticisms in relation to expert evidence, describing the Sheriff’s approach as unimpeachable.
The Opinion of the Sheriff Appeal Court can be found here.
Ross Anderson new King’s Counsel appointment at Ampersand Advocates
Congratulations to Ampersand’s Ross Anderson KC on taking silk. Ross is amongst sixteen new silks announced today, appointed by His Majesty the King on the recommendation of First Minister John Swinney.
The rank of King’s Counsel is generally reserved for those who have distinguished themselves in practice in the Supreme Courts. Advocates and Solicitors with Rights of Audience in the Supreme Courts are eligible to apply to the Lord Justice General, Scotland’s senior judge. Before making nominations to the First Minister, the Lord Justice General consults other judges, the Lord Advocate, the Dean of the Faculty of Advocates and the President of the Law Society of Scotland.
Ross’s practice focuses on commercial dispute resolution, company and insolvency law, property law, public law, trusts and tax. Ross was a standing junior counsel to the UK Government (having been assigned to HM Revenue & Customs from 2015-2024). He appears regularly in UK tribunals as well as in the Court of Session.
Stable Director Isla Davie KC said: “I congratulate Ross on this well deserved appointment as King’s Counsel. He is an excellent Advocate held in high regard in the profession and this appointment further strengthens Ampersand’s offering of first class Senior Counsel.”
The full list of new silks can be found on the Judiciary of Scotland website here.
Court of Session enforces adjudicator’s decision and rejects natural justice challenge
[2026] CSOH 80 — Entexol Limited v Sked Construction Limited
Lord Lake has issued an opinion enforcing an adjudicator’s decision of £113,767, rejecting the defender’s argument that the decision was unenforceable because the adjudicator had departed from the parties’ submissions in concluding that “time was at large.”
Ampersand’s Brandon Malone appeared for the pursuer, Entexol Limited, instructed by HF Scotland LLP.
Background
Entexol was engaged as a subcontractor by Sked Construction for contract works being carried out for Scottish Power Energy Networks PLC. Disputes arose under the subcontract and were referred to adjudication. In the second adjudication, the adjudicator decided that Sked should pay Entexol £113,767. Entexol raised this action to enforce it.
The material dispute concerned contra charges advanced by Sked in a pay less notice, one element of which was a claim for costs said to arise from Entexol’s failure to complete the works on time. Sked’s position was that the completion date had been fixed as 13 November 2024 by an instruction issued by email on 12 July 2024.
The adjudicator did not accept that the email was an instruction as to the date for completion, and held that in any event a binding agreement as to time limits could not be imposed by a unilateral instruction. He found that time was at large, and decided that no damages were due for delay because no completion date had ever been agreed and because Sked had not demonstrated that Entexol caused delay to Sked’s own operations.
The challenge
Sked contended that neither party had submitted that time was at large, and that in reaching that conclusion the adjudicator had gone off on “a frolic of his own.” It was argued that, having rejected the case that the completion date was fixed by the email of 12 July 2024, the adjudicator ought to have afforded Sked an opportunity to establish what a reasonable period for completion would have been. Had it been given that opportunity, it would have taken it.
Entexol submitted that the question of the time by which the works should have been completed was part of Sked’s case before the adjudicator, not its own. As the party advancing an entitlement to a contra charge, Sked bore the burden of establishing the date by which the works ought to have been completed. The adjudicator’s conclusion was part of the answer to Sked’s case and arose from its own contention that there was a fixed date.
The decision
There was no practical dispute as to the applicable law, the relevant propositions having been restated by Lord Braid in Van Oord UK Limited v Dragados UK Limited [2022] CSOH 30, and reiterated in ATG Services (Scotland) Limited v Ogilvie Construction Limited [2024] CSOH 94 and Premier Modular Limited v Maidstone and Tunbridge Wells NHS Trust [2026] EWHC 1404 (TCC). Lord Lake observed that although those authorities refer to the test being met where an adjudicator has gone off on a frolic of his or her own, the core issue is whether both parties had an opportunity to respond to the points against them.
Applying that approach, Lord Lake held that the adjudicator’s reference to time being at large was a consequence of his decision on the matters put before him, rather than the reason for that decision. Sked had claimed that the contract required completion by 13 November 2024, and the adjudicator had to consider whether he accepted that date. He did not. That had the consequence that Sked had not established a key element of its case and the contra charge would not be allowed. Properly analysed, the reference to time being at large was “something of a red herring.” This was not a case in which the adjudicator undertook investigations or inquiries of his own; he rejected the basis of the case put forward by the defender, who was aware that this was a matter the adjudicator would have to decide.
Lord Lake also rejected the argument that, once minded to reject Sked’s case on the contractual completion date, the adjudicator was bound to notify the parties and invite further submissions. No such requirement would exist in court proceedings, and adjudication is intended to be speedier and more informal, with tight timetables which would make such steps impracticable.
Disposal
Lord Lake was satisfied that there was no relevant defence to the claim in the first conclusion. He sustained the pursuer’s first plea-in-law to the extent of finding the defence in that regard irrelevant and granted decree in terms of the first conclusion, the motion for summary decree accordingly falling away.
In relation to a separate sum of £10,000 sought in the third conclusion, he refused the pursuer’s motions, considering that the defender potentially had a defence and that the disputed issue of fact underlying it could not be resolved on the material before him. The case will be put out By Order to determine further procedure.
The opinion is available on the Scottish Courts and Tribunals Service website here.
Court of Session issues decision on Scottish Ministers’ petition for removal of Irish Travellers from Edinburgh development site
[2026] CSOH 82 – Petition of the Scottish Ministers for an order under section 46 of the Court of Session Act 1988 and for interdict and interdict ad interim
Lady Tait has issued an opinion in a case where the petitioners, the Scottish Ministers, sought an order under section 46 of the Court of Session Act 1988: (i) ordering the occupants to remove themselves, their caravans and all other goods from the site to restore possession of the site to the petitioners; and (ii) to interdict the occupants from entering the site.
Chris Stephen was instructed by the Scottish Human Rights Commission (SHRC) as the First Interested Party to produce a Minute of Written Submission addressing the UNCRC requirements under the United Nations Convention on the Rights of the Child (Incorporation)(Scotland) Act 2024.
Summary
The petitioners are proprietors of an area of land. Planning permission has been granted for the development of the site. The respondent Is an Irish Traveller. The respondent and his family have occupied an area of the site since 2024. The respondent submitted that in circumstances where no culturally appropriate accommodation would be made available on eviction, the orders would constitute an unlawful interference with the respondent’s rights under Articles 8 and 14 of the European Convention on Human Rights (“ECHR”). It was also submitted they would also be incompatible with the respondent’s children’s rights under the United Nations Convention on the Rights of the Child (“UNCRC”).
Outcome
There was no dispute that the petitioners’ redevelopment project was capable of constituting a legitimate aim, and that vacant possession of the site was rationally connected to that objective. The question for the court was whether an order to evict the respondent in the absence of appropriate alternative accommodation was a proportionate means of achieving that legitimate aim. Lady Tait concluded that there was no less intrusive measure than eviction and that the importance and urgency of the petitioners’ objectives outweighed the severity of the effect of the eviction. In those circumstances, the interference with the respondent’s Article 8 rights was proportionate. Nor was there an evidential basis to submit that the family had been discriminated against by the petitioners under Article 14.
With regards to the children’s rights under the UNCRC, it was accepted that the petitioners and the court were exercising a relevant function under the 2024 Act. However, there was no less intrusive measure than eviction and that the importance and urgency of the petitioners’ objectives outweighed the severity of the effect of the eviction. The current absence of accommodation did not elevate the site into one which was appropriate for the family and which served the children’s best interests.
Lady Tait granted the prayer of the petition and the orders sought. The opinion is available on the Scottish Courts and Tribunals Service website here.
Ampersand is proud to support Doors Open Days 2026, coordinated by the Scottish Civic Trust
Doors Open Days returns this September, and Ampersand is pleased to be supporting it.
Coordinated by the Scottish Civic Trust, Doors Open Days is Scotland’s largest free festival celebrating places, history and culture – hundreds of buildings across the country opening their doors to the public, many of them ordinarily closed. This year’s theme is Heritage at Risk: Revive, Resist, Reimagine.
We are based at Parliament House, a building that owes its survival to precisely that kind of care. Details of what is open near you are at doorsopendays.org.uk.
Chair of the SCT, Euan Mackenzie KC said: “The Scottish Civic Trust is grateful for the support of Ampersand Advocates which will help the Trust to continue its important work, including supporting and empowering local civic and heritage groups throughout Scotland.”
[2026] CSOH 80 — Entexol Limited v Sked Construction Limited
