Scottish Court of Session Decisions

OPINION OF LORD PROSSER

in

RECLAIMING MOTION FOR DEFENDERS

in the cause

TIMOTHY R. RICHARDSON

Pursuer and Respondent;

against

QUERCUS LIMITED

Defenders and Reclaimers:

_______

In this reparation action, the pursuer, Mr. Richardson, obtained an award of damages amounting to £46,865.85 against the defenders, by virtue of an interlocutor dated 25 March, 1997. The defenders reclaim against that interlocutor.

In 1987, the defenders were the proprietors of subjects at 16 Howe Street, Edinburgh. These subjects comprised the basement and ground floors of a tenement building. Above them, on the first floor, there was a flat owned by a Mr. Hepburn; and above that, on the second and top floors, was a double flat owned by the pursuer. The defenders carried out renovation works on their property, involving removal of load-bearing walls. As a result, the property of the pursuer sustained damage. In terms of the parties' pleadings, and the evidence and submissions at proof, the parties were in dispute in a number of ways with which we need not concern ourselves. The award of damages, in respect of the damage to the pursuer's property and consequential loss, is attacked upon one basis only: that the obligation owed by the

defenders to the pursuer having been extinguished by the operation of prescription, the defenders should be assoilzied. That proposition was only incorporated in the defenders' first plea-in-law (which was previously wrongly expressed in terms of time-bar) when the reclaiming motion was presented; but it is clear that throughout the proceedings in the Outer House, the issue was presented and dealt with as one of prescription. On behalf of the defenders and reclaimers, the submission was that the plea, as amended, should be sustained, the reclaiming motion allowed and absolvitor granted.

Section 6(1) of the Prescription and Limitation (Scotland) Act 1973 provides as follows:

Section 6(2) provides for Schedule 1 to the Act to have effect for defining the obligations to which the section applies; and in terms of Schedule 1, paragraph 1(d), these obligations include any obligation arising from liability to make reparation. Section 6(3) provides that in subsection (1), the reference to "the appropriate date" in relation to obligations of any kind not specified in Schedule 2 is a reference to "the date when the obligation became enforceable". Obligations arising from liability to make reparation are not specified in Schedule 2, and for present purposes the "appropriate date" is accordingly the date when "the obligation became enforceable". Section 11(1) provides that any obligation to make reparation for loss, injury or damage caused by an act, neglect or default is to be regarded for the purposes of section 6 as having become enforceable on the date when the loss, injury or damage occurred. That provision is subject to subsections (2) and (3) of the section. Subsection (2) provides that where, as a result of a continuing act, neglect or default, loss, injury or damage has occurred before the cessation of the act, neglect or default the loss, injury or damage shall be deemed for the purposes of subsection (1) to have occurred on the date when the act, neglect or default ceased. In terms of subsection (3), where the creditor in an obligation was not aware, and could not with reasonable diligence have been aware, that loss, injury or damage caused by an act, neglect or default had occurred, the date when he first became, or could with reasonable diligence have become, so aware is substituted for the date when the loss, injury or damage occurred, or would be deemed to have occurred, in terms of subsections (1) and (2). However, the provisions of subsection (3) are not in point in the present case.

While damage apparently continued to manifest itself in the pursuer's flat until 1991, it has been held that the defenders' injurious actions continued until mid-1988, and then stopped. On that basis, the relevant loss, injury or damage must be taken as having occurred at that date; and the defenders' obligation to make reparation is thus to be regarded, for the purposes of section 6 of the Act, as having become enforceable on that date also. And that date is thus the "appropriate date" for the purposes of section 6(1).

It is not suggested that at any time after the appropriate date in mid-1988 any "relevant claim" (as defined in section 9) was made at any time prior to the raising of the present action, which was served on the defenders on 9 May 1995. That being so, the relevant obligation subsisted for a continuous period of approximately seven years without any relevant claim having been made. There is thus no basis upon which the pursuer can rely upon section 6(1)(a) in contending that the obligation has not been extinguished. The defenders contend that the whole of this period from the appropriate date until the raising of the action likewise passed "without the subsistence of the obligation having been relevantly acknowledged" - which in terms of section 6(1)(b) would mean that as from the expiration of the continuous period of five years from the appropriate date, the obligation was extinguished. On behalf of the pursuer, the contention is that over the period from the appropriate date to the raising of the present action, there has been no continuous period of five years without the subsistence of the obligation having been relevantly acknowledged: the subsistence of the obligation was relevantly acknowledged before the expiration of five years from the appropriate date, and less than five years prior to the raising of the present action. Before turning to the statutory criteria for regarding an obligation as having been "relevantly acknowledged", I would note that section 6(1), while concerned with a continuous period of five years "after" the appropriate date, is not concerned only with such a continuous period commencing on that date. It is thus apparent that the relevant obligation in the present case would be extinguished not only if the five years commencing on the appropriate date elapsed without a relevant claim or acknowledgement in terms of heads (a) and (b), with any subsequent claim or acknowledgement - say, in 1994 - being ineffectual to prevent extinction, but also if a continuous period of five years elapsed at any later stage prior to the raising of the present action, any prior claim or acknowledgement - say, in 1989 - being in that event equally ineffectual to prevent extinction. In the present case, the main concentration has been upon the five years immediately prior to the raising of the present action, rather than the five years commencing at the appropriate date in 1988. But it does not appear to me that in practical terms there is any problem, as the matters founded upon occurred not only prior to mid-1993, but also over a period which ran beyond May 1990, and on into 1992. If these matters constitute a relevant acknowledgement, for the purposes of section 6(1)(b), they would interrupt any continuous quinquennium between mid-1988 and May 1995.

Section 10(1) of the Act provides as follows:

Subsection (4) of section 10 provides that in section 10, references to performance in relation to an obligation "include, where the nature of the obligation so requires, references to refraining from doing something and to permitting or suffering something to be done or maintained".

The pursuer's contention that the subsistence of the obligation was relevantly acknowledged in terms of section 6(1)(b) was upheld by the Temporary Judge after proof, on the basis that both of the conditions set out at (a) and (b) of section 10(1) were satisfied in this case. In reclaiming, the defenders set out five Grounds of Appeal. Ground 4 is not now insisted in. Ground 5 is to the effect that the Judge erred in law with regard to section 10(1)(a), on the basis that there was no evidence of the required "performance". Ground 1 is to the effect that the Judge erred in law in relation to section 10(1)(b), on the basis that a letter of 2 June 1992, relied upon by the Judge, did not constitute an unequivocal written admission of the required kind. Grounds 2 and 3 raise specific issues in relation to that letter, to the effect that it was not part of the evidence before the court, and that the Judge erred in law in looking at its terms, despite the use of the formulation "without prejudice to liability". It is convenient to deal with these two specific matters, as to the propriety of looking at this letter, before turning to the substantive issues under section 10(1)(a) and (b) raised by Grounds 5 and 1 respectively.

The pursuer had called upon the defenders to admit certain matters in terms of Rule of Court 36.6. The defenders expressly intimated that they did not admit various matters, including those relating to this letter. By Joint Minute the parties agreed certain matters, and in particular agreed that various specified items of process were letters or copy receipts sent by the party designed therein on the date specified, and received by the addressee in the ordinary first class post. This letter was not among those covered by that agreement. The Joint Minute contained a further head of agreement, to the effect "that all documents are what they bear to be and that copies can be regarded as the equivalent of principals". While it was not eventually disputed by counsel for the reclaimers that this letter was a document within the scope of this head of agreement, and that the agreement took one to the point where the letter could properly be taken into account as having been written by its apparent authors on its stated date and in its stated terms to the named addressee, it was nonetheless submitted that in sharp and presumably intentional contrast to what had been agreed for other letters, in the first head of the Joint Minute, this head of agreement contained nothing as to whether the letter had ever in fact been received. Unless it was received, and received at some date at least broadly identifiable and within any relevant quinquennium, the letter could have no bearing upon the issues in the case. Moreover, while reference to the letter could be found in the examination of two witnesses, in the notes of evidence, neither of these passages amounted to evidence that the letter had been thus received. While the point taken in relation to the Joint Minute can be described as somewhat technical, it is probably sound enough, so far as it goes. But with agreement to the conceded extent, it will take little to establish that the letter was indeed sent to and received by the intended addressee after being written, particularly if, as here, the addressee has not denied receipt. In evidence, Mr. James McColl, an engineer engaged by the pursuer in relation to this matter, was asked whether he was aware of this letter, and his reply was "I think I have seen a copy of this in the file". The letter is addressed not to Mr. McColl, but to the pursuer's solicitor. But Mr. McColl describes Robins McTear, the authors of the letter, as the "loss adjusters whom we...were working hand-in-hand with...". Counsel for the reclaimers also relied upon the fact that Mr. McColl did not say whose file he was talking about, or when he had seen it. I am however entirely satisfied that upon the whole material available, the Temporary Judge was well-entitled to treat this letter as having indeed been sent by Robins McTear to the pursuer's solicitor on or shortly after 2 June 1992. (It is perhaps worth mentioning that the reclaimers' fourth Ground of Appeal, now no longer insisted in, was to the effect that the letter could not constitute a relevant acknowledgement because there was no evidence that Robins McTear were "instructed by" the defenders. Since that Ground of Appeal is not insisted in, I proceed upon the basis - in my view amply substantiated by this and other letters - that the pursuer was well-founded when he said that he thought Robins McTear were acting "for the owner of the property down underneath me, and the insurance company which they were insured with").

The letter is headed "Without prejudice to liability". Counsel for the defenders and reclaimers accepted that a docquet in such terms would not necessarily or always prevent the court from taking the content of the letter into account. The principles set out in Daks Simpson Group plc v. Kuiper 1994 S.L.T. 689 provided the appropriate test. It was accepted that in accordance with that test, if this particular letter itself contained a clear acknowledgement that liability was accepted, the letter could be looked at notwithstanding the "without prejudice" heading. But if the letter could only bear that meaning when construed under reference to extraneous facts or prior correspondence, it should not be looked at. Whatever construction might be put upon the letter under reference to such prior and extraneous material (a point upon which the parties were at issue in relation to section 10(1)(b)) it was submitted that the terms of the letter itself, viewed in isolation, could not be read as a clear acknowledgement of liability, and the words "without prejudice to liability" should be allowed to prevail, and prevent reference to the letter.

I am not persuaded that these submissions are sound. "Without prejudice" formulae are perhaps a useful and effective shorthand in various situations, to make plain what might perhaps be better expressed somewhat more fully - for example, in the course of negotiation, that a party reserves the right, if negotiations fail, to depart entirely from positions adopted or suggested for the purposes of negotiation. And no doubt, where there is a problem between two parties, involving questions both as to liability and as to the quantum of damages in the event of liability, it may be desirable in the course of discussing the latter to make it plain that discussion of quantification is entirely hypothetical, with the issue of liability being held over or perhaps left to others. That may be particularly desirable when matters of quantification are being dealt with by loss adjusters, with issues as to liability being handled not by them but by others. But the position might well be very different if loss adjusters were working against a background in which liability was not being disputed. It is clear that what was said in Daks was not intended to cover all possible situations, and it appears to me that each situation must be judged upon its own facts. As will appear from what I say in relation to the two principal Grounds of Appeal, I am satisfied that in considering the issues raised by section 10(1)(a) and (b) it is not appropriate to look at individual letters or individual events in isolation only. If, looking at them in conjunction and taking this letter into account, it appears that there is no clear indication, or no clear acknowledgement by written admission, that the obligation still subsists, then it may well be that along with a conclusion to that effect, one might conclude that the terms of this letter lacked sufficient substance to overcome the words "without prejudice to liability". But if overall the substance of this letter, taken with the substance of prior events or writings, could be seen as satisfying the conditions set out in section 10(1), it would in my opinion be quite wrong to have decided a priori that the terms of this letter were of insufficient substance to overcome the docquet. If the terms of this letter, whether alone or with other material, are sufficient to satisfy either of those conditions in section 10(1), then in my opinion they are sufficient to render the docquet ineffectual.

Before turning to consider the two main issues, I should give a narrative of the history of events, and note certain background issues. Work on the defenders' premises began in about March 1987. The existence of structural damage in the pursuer's flat was already evident on 24 March, when a representative from Edinburgh District Council Building Control visited the flat. Such damage was also evident when the defenders first had the pursuer's flat surveyed, in April, and on a further Building Control visit in May. On 29 May, the defenders wrote to the pursuer: this is the first of a number of letters between various parties which are of significance in relation to the substantive issues in the case. Building works continued during the rest of 1987. The parties had agreed that the question of remedial works could only be assessed at the end of the building operations. The defenders made various suggestions to the pursuer about the extent and nature of the remedial works to be done in respect of the damage caused to his flat. The Judge has held that it is very clear that the offers made by the defenders throughout 1987 and 1988 were quite insufficient to address the problems which they had caused to the pursuer's flat, and that he was entitled to reject them as such. He goes on to say that thereafter it became impossible for the parties to agree what should be done to restore the position in the pursuer's flat. The cracks in the pursuer's property continued to grow significantly in extent and in width throughout the period of 1988 and 1989 when negotiations were being proposed. There was moderate structural movement in certain rooms, and in general terms every room in the pursuer's flat was affected by plaster cracks in walls and ceilings. The Judge accepted expert evidence that when the defenders removed the load-bearing wall in the basement, the centre of the entire building was caused to drop, drawing the sides of the building in and down. The Judge has held that the defenders' proposals "which were in essence that superficial and cosmetic repairs would have sufficed at an early stage" were wholly flawed, and that there was no doubt that any repair work could only start when movement in the cracks had ceased. In September 1991, it was confirmed that movement had finally stopped, and the pursuer then instructed a Bill of Quantities which was put out to tender. The best estimate was accepted and work progressed. The Judge says that during the period of remedial works which took place from late 1991 onwards, Robin McTear Limited "represented the defenders' interest to the pursuer and appeared at regular intervals at the pursuer's home to inspect the work that was being done. In all the circumstances of the case, Mr. McColl and the pursuer understood very clearly from their dealings in these remedial works that Robin McTear Limited were instructed to see that this remedial work was done in a reasonable way and at a reasonable price to the defenders or their insurers". The letter of 2 June 1992 of course occurs during this chapter of events.

The Judge states that as far as liability was concerned, there was in principle no difference between the parties. It was admitted that damage was caused to the pursuer's property by the defenders' building works. He goes on to say that in fact it seemed to be a plain inference that the work which the defenders set out to do would cause such damage, and that in these circumstances, liability in law for the consequences of such damage was virtually automatic and was certainly established in this case. He says that as he understood the submissions, the issue between the parties was not whether the defenders were liable to the pursuer for the damage caused by the building operations, but rather the extent and effect of that damage. The issues of extent and effect having been determined by the Judge, and not having been challenged, there is no need to consider them. Nor need one consider questions of quantum. Before turning to the two main issues, however, it is perhaps worth mentioning that the Judge rejected a submission made on behalf of the pursuer to the effect that the prescriptive period began to run not in mid-1988 (when the defenders' injurious actions ceased), but in January 1991 (when damage ceased to manifest itself). His decision on that point is not now questioned, and is in my opinion plainly right.

In dealing with the parties' submissions upon the issue of prescription, and in particular upon the question of whether the obligation had subsisted for a continuous period of five years without its subsistence having been "relevantly acknowledged" in terms of section 6(1)(b) of the Act, the Judge considers first the question which arises under section 10(1)(b), concerning unequivocal written admission. Thereafter he turns to the matters covered by section 10(1)(a). In that connection it is worth noting that he does not refer specifically to subsection (1)(a), nor does he use the precise language of head (a). However, the defenders' fifth Ground of Appeal proceeds upon the basis that the decision is in part founded upon section 10(1)(a), it being said that the Judge erred in law with regard to that specific head; and both parties' submissions in relation to the reclaiming motion proceeded upon the basis that head (a) as well as head (b) had (rightly or wrongly) constituted the basis of the Judge's decision that the claim had been relevantly acknowledged, and that in consequence the obligation had not been extinguished. The pursuer's pleadings refer to both heads.

Since the decision and the reclaiming motion thus relate both to head (a) and to head (b), I have found it more convenient to consider them in the order in which they appear in section 10. Observing that it was not in his view necessary to rely on the letter of 2 June 1992, the Judge says that "the whole burden of the evidence of the dealings between all the parties and their representatives or agents...concerning the actings of the defenders and their representatives constituted an acknowledgement of that indebtedness". He concluded that the defenders had unequivocally admitted their obligation to the pursuer from early in 1987 until well into 1992 "both by their correspondence and their actions".

In looking at the parties' dealings or actings, and their correspondence as well as their actions, as a basis for holding that the operation of the short negative prescription did not extinguish the pursuer's claim, the Judge was clearly treating head (a) of section 10(1) as having a wide scope. In submitting that he erred, counsel for the reclaimers were not, as it seemed to me, contending that no Judge could legitimately draw the inference which this Judge drew from the material which he looked at. The contention was rather that he had misconstrued head (a), giving it a wider scope than it had, and thus treating as "performance by or on behalf of the debtor towards implement of the obligation" actions or correspondence or dealings which could not properly be treated as falling within that expression. One could not look, as the Judge had, at all dealings between all of the parties and their representatives or agents over the whole period from early in 1987 until well into 1992. What was in issue was performance of the obligation, and the obligation was the obligation to make reparation. Performance of that obligation could be constituted only by paying money, or perhaps executing actual works. The primary submission appeared to be that only actual part performance of the obligation was covered. It was however accepted, I think, that if the debtor had done something which could only be seen as referable to performance or implementation of the obligation, then it would be legitimate to take that into account in considering whether there had been the necessary clear indication that the obligation still subsisted.

It was emphasised that one must be careful not to hold referable to performance of the obligation actions which might be referable to something less or different. In particular, an alleged wrongdoer or those acting for him might be under pressure to agree that certain remedial works were the appropriate ones for restoration of damaged property, or indeed to agree the quantum of loss, upon the hypothesis that they might be liable, but without accepting liability. One might thus lose one's right to dispute such issues of remedy or quantum, while remaining totally at arm's length on liability. "Performance" might not be limited to actual or part performance of the obligation itself. It might fall well short of those acts constituting actual implement. Nonetheless, there must be more than conduct indicating that the alleged wrongdoer perhaps intended to proceed with actual implementation. Whatever was done must be clearly indicative of his having actually committed himself to performance and implement of the obligation itself. If what had been done had any reasonable explanation, other than such a commitment to fulfilling the obligation, it could not constitute the performance required under section 10(1)(a). Reference was made to Gibson v. Carson 1980 S.C. 356, Lord Allanbridge at page 360.

The submissions for the reclaimers in relation to this Ground of Appeal initially depended also upon arguments as to whether the writers of certain letters (such as Robin McTear Limited) were acting "on behalf of" the defenders, in such a way that their actions could be looked at for the purposes of section 10(1)(a). This line of argument was not, however, insisted in. What was submitted was that the actings of the parties and their representatives or agents, and in particular the correspondence, could not properly be regarded as clearly indicating the subsistence of the obligation at the dates of such actings or correspondence, since the actings and correspondence in question could also reasonably be regarded as referable to attempts on both sides, without any acceptance by the defenders that they were liable in reparation, to resolve issues as to remedial works and quantum in advance of any resolution of the question of liability.

Counsel for the pursuer and respondent relied not only on the passage in the Judge's opinion already referred to, but on passages where he was dealing primarily with the correspondence for the purposes of section 10(1)(b). So far as the correspondence was concerned, what was said was this: "All this correspondence (which is only a part of the whole) makes it abundantly clear that all parties concerned in the matter were acting throughout on the basis that the defenders had expressed an unqualified and unequivocal admission that they were liable for the damage they had caused". That observation was in point in relation to head (a) as well as (b). And in relation to head (a), it was to be noted that the Judge had gone beyond the correspondence, and had said that this general position was in fact directly confirmed by the oral evidence of the pursuer and Mr. McColl. Against that background, the Judge had observed, under reference to Gibson v. Carson and the Stair Memorial Encyclopaedia volume 16 at paragraph 2125, that whether a party has or has not acknowledged the subsistence of the obligation during the five year period was a matter of fact and degree in each case. That was applicable to both heads of section 10(1). The Judge had said that he was satisfied on the evidence that there had been "such a continuing acknowledgement in the circumstances of this case". It was submitted that the reclaimers had to show that the Temporary Judge was not entitled to find as he did. He had found that the pursuer and Mr. McColl were reliable. On the matters in question, there was no contrary evidence from the defenders of any kind, for the period from 1988 onwards. And indeed there had been little or no cross-examination on these matters. In such circumstances, he was entitled, where inference was appropriate, to draw inferences favourable to the pursuer rather than the defender. The role of Robin McTear Limited was important. The Judge was entitled to see them not merely as having been acting on some hypothetical basis, with issues of liability being outside their authority and reserved for others, while they dealt merely with quantification. One was not obliged, in deciding whether there was a clear indication of the existence of the obligation at any date, to take any particular act or letter in isolation. The Judge had plainly relied on the whole correspondence and other matters, and had interpreted the whole material as giving the required indication, over a substantial period. For his discretion in drawing inferences, reference was made to Lord Reid's observations in Ross v. Associated Portland Cement Manufacturers Ltd. 1964 1 W.L.R. 768, at p. 775 and Johnstone v. City of Glasgow District Council 1986 S.L.T. 50.

So far as the interpretation of head (a) was concerned, it was submitted that there was no restriction on what could be taken as a clear indication. Nor was there a limitation of the type suggested by the reclaimers, as to what was covered by the words "performance...towards implement of the obligation". Performance was plainly something distinct from implementation. The word "towards" confirmed that one could look at conduct prior to any stage of actual implement. And it was open to a Judge, considering evidence, to look at individual events which might, if viewed in isolation, be referable to various courses of action, but which, when taken with other such events, provided the clear indication required.

While I shall refer to the terms of certain specific letters in relation to head (b), I am satisfied that on head (a) the submissions for the pursuer and respondent are sound. It does not seem to me to be helpful to adopt alternative terminology (such as that of commitment, or being "only referable") in preference to the language of the section. In considering the significance of any event or letter, I see no reason why one should be disabled from putting it in context, and having regard to events which have occurred earlier, and indeed perhaps much earlier. Plainly, it will be appropriate to bear in mind that earlier positions may have been departed from, that any activity may be under reservation of liability, and that one must be satisfied that the condition set out in head (a) is indeed met. But that is the Judge's function, and I am not persuaded that the conclusion which he reached in relation to head (a) was unjustified. On that basis, I would refuse the reclaiming motion.

That being so, there is no need for the condition set out in head (b) to be satisfied. It is, however, right to consider the arguments advanced in that connection. On behalf of the reclaimers and defenders, it was emphasised that the written admission in question must come after the obligation had come into existence. This was clear from the language of head (b) itself: an obligation could not "still subsist" if it had not yet come into existence. It was also clear from the language of section 6(1). That being so, it was not merely an acknowledgement after the expiry of five years which was ineffectual (reference was made to Greater Glasgow Health Board v. Baxter, Clark & Paul 1990 S.C. 237). An acknowledgement before the obligation came into existence, or before the "appropriate date", was equally and quite simply not in point. The Judge had relied fundamentally on the letter of 29 May 1987, but that letter came too early to be of use in relation to head (b). In any event, as a matter of construction, that letter could not be said to meet the requirements of head (b) of section 10(1). Nor did the other letters relied upon by the Judge (of 20 November 1987, 21 July 1989 and 2 June 1992) meet the requirements of head (b). The requirements of head (b) were strict: not merely must the admission be written, it must be "unequivocal". Not merely must it acknowledge that the obligation still subsisted, it must do so "clearly". And the use of the word "still" showed that one was concerned with the continuing existence of the obligation at the date of the written admission. One must look at any document put forward as the required written admission at its own date, on its own terms and for its own effect. There was no way of avoiding the statutory extinction of the obligation, as from the expiration of the period in question, in the absence of such an admission during that period. While initially the contention was that one could not look at prior documents for any purpose, senior counsel for the reclaimers subsequently accepted that it might be competent to look at a pre-quinquennium document if that was necessary in order to construe a mid-quinquennium document. A written admission which itself otherwise met the requirements of head (b), but was prior to the "appropriate date", could thus perhaps be referred to, to discover the sense and reference of a later document. But it was no substitute for such a later document; and the later document itself, whatever might have been used in order to construe it, would have to meet the requirements of head (b), if extinction of the obligation was to be avoided.

Counsel for the reclaimers and defenders considered the terms of these four letters in considerable detail. While the letter of 29 May 1997 was written when the wrongdoing had commenced, and an obligation to make reparation might be said to have come into existence, it was nonetheless prior to the "appropriate date" which resulted from the continuance of the wrong. The letter was thus too early for the purposes of sections 6 and 10. That letter, from the reclaimers and defenders, expressed their apology for the "inconvenience" which the pursuer had incurred, and contained an agreement that the defenders would "undertake to carry out remedial works to your property" at a time to be agreed, once the structural works were complete. But it would be going too far to read it as an admission acknowledging that the defenders then owed the pursuer an obligation in reparation. The Judge had erred in so construing it.

In their letter to the pursuer of 20 November 1987, the defenders offered the pursuer "our sincere regrets for what has occurred" and expressed their "intent to put right any damage as soon as can safely be done". However, they went on to say that they could not meanwhile acknowledge any blame "on our professional conduct" or "on that of our structural engineer or contractor". This letter also was written before the "appropriate date", and again it would be going too far to see it as meeting the requirements of head (b).

The letter of 21 July 1989 fell within an appropriate period; but that letter, from the defenders to the pursuer's solicitor, while it enclosed a drawing showing remedial works proposed by the defenders, was not a letter which could be seen as containing any admission. The crucial letter was that of 2 June 1992, from Robins McTear Limited to the pursuer's solicitor. According to that letter "our Principals have reaffirmed that there is no objection to your client instructing reasonable repairs". There was also a reference to avoiding some of the "contentious consequential expenses". But these matters, concerning remedial works and expenditure, simply did not deal with any issue of liability. The fact that the defenders were not objecting to reasonable repairs did not mean that they had accepted liability in principle. The Judge had erred in seeing this letter as one which met the requirements of head (b).

These submissions, looking at each letter in isolation from the others, plainly have force. Moreover, in relation to head (b) I do not think that there is room for the open approach applicable under head (a), drawing inferences in a broad way from a general set of events. Nonetheless, the meaning of a letter will not always, or perhaps usually, be discoverable exhaustively simply by looking at that letter in isolation. It does not appear to me to be in conflict with the requirement that there be an unequivocal written admission, or that that admission must clearly acknowledge that the obligation still subsists, to put the particular letter in the context of prior correspondence. In addition to the letters already mentioned, it is to be noted that on 5 June 1989, Robins McTear informed the defenders themselves that the pursuer (and the owner of the intermediate flat) will be in a position to instruct repairs on their own property "for which appropriate cash compensation can be made direct" and that "any delays will consequently be their responsibility". Whether one works back from the letter of 2 June 1992, or forwards from that of 29 May 1987, the defenders are revealed as accepting responsibility for the works required to remedy damage which is plainly seen as resulting from what they were doing on their own premises. The reservations as to liability are quite specific, and do not relate to the obvious basis of liability, in fact founded upon in this action, namely liability for damage flowing from a failure in the duty to provide support. While I would not wish to concur in detail with all that is said by the Temporary Judge in relation to each or all of the letters, I am satisfied that they provide a sufficient basis for a finding that there was made, by or on behalf of the defenders, to the pursuer or his agent an unequivocal written admission clearly acknowledging that the obligation still subsisted at one or more of the relevant dates. And while it is not necessary for me to reach a concluded view upon head (b), having regard to my opinion in relation to head (a), I am myself disposed to hold that the condition set out in head (b) is indeed satisfied, any other interpretation of the letters appearing to me to be theoretical and unrealistic.

In the whole circumstances, I would refuse the reclaiming motion.