John Busby and Marie Donnelly argued that Mark and Kim Blair were in breach of the terms of the missives of sale by not declaring the existence of an infestation of the plant prior to the sale. The defenders sought dismissal of the action on the basis that the pursuers’ averments were irrelevant.

The case was heard by Sheriff Christopher Dickson at Edinburgh Sheriff Court.

Any harmful thing

By missives dated 19 March to 26 May 2021 the parties concluded a contract whereby the pursuers agreed to buy the property for a price of £602,500, with a date of entry on 28 May 2021. The pursuers took entry on 28 May 2021 and quickly discovered the presence of Japanese Knotweed. It was a matter of agreement that the defenders knew about the plant and had previously attempted to treat it without total success.

The missives incorporated the Scottish Standard Clauses, including clause 2.1.3, in which the seller declares that so far as they are aware the property (including the grounds) is not affected by rot, damp, woodworm, or “other infestation” other than what is disclosed in the Home Report. It was contended by the defenders that the latter phrase could not be construed to cover JK.

For the defenders it was submitted that “other infestation” ought to be read as relating to matters eiusdem generis with the other matters set out in the clause. When looked at in that manner, it did not cover large plants that invade the garden and prove difficult to remove. The ordinary meaning of the word “infestation” meant a large number of insects or animals that causing damage, not a plant, and so they did not have to disclose the JK to the pursuers.

Under reference to recent case law, the pursuers submitted that it was tolerably clear that “infestation” covered any harmful thing that overran a place in large numbers, with no dictionary definition explicitly limiting the infestation to insects. A Royal Institute of Chartered Surveyors information paper of February 2022 stipulated that any amount of JK on a site could be considered an infestation. To apply an eiusdem generis limitation to the clause, the phrase ought to have been “other such infestation”.

Not limited to insects

In his decision, Sheriff Dickson said of the relevant clause: “I considered that if the eiusdem generis rule of construction did apply to the words ‘other infestation’ that the parties’ intention was simply to limit those words to a general class of matters which could commonly adversely affect a property. I considered that the use of the word ‘infestation’ was not limited to insects or animals and that whilst a structural defect could not be described as an infestation, the remainder of the list could each be described an infestation.”

He continued: “I considered the presence of JK on a property in sufficient numbers could properly be described as an infestation of JK and that a JK infestation was a harmful thing or matter which could commonly adversely affect a property (which included adversely affecting a physical building). Indeed the defenders admit that JK ‘is a pest plant which blights gardens and damages structures’.”

Taking support from the 5th edition of Gretton and Reid’s Conveyancing, the sheriff added: “The paragraph I have quoted from Gretton and Reid highlights, in general terms, the potentially limited value of clause 2.1.3, however, in the present case the defenders admit that they were aware, during their ownership of the property, that the property contained JK. The pursuers aver that the property contained a substantial amount of JK, including JK that was near to the dwelling house on the property.”

He concluded: “The defenders do not, however, admit that they were aware that there was a JK ‘infestation’ and in the circumstances it may prove necessary, if the issue cannot be agreed, for evidence to be led that the JK that the defenders were of aware of on the property was indeed a JK ‘infestation’.”

Having determined that the pursuers had pled a relevant case, the defenders’ plea in law on relevancy was repelled, with a hearing to be fixed to determine further procedure.

Flexlaw Solicitors acted as agents for the pursuer with Cameron Smith advocate instructed. Urquharts Solicitors were agents for the defender with solicitor advocate Stephen Blane appearing.