Scottish Court of Session Decisions

[1] The appellant is the owner occupier of a flat at 145 Bruntsfield Place, Edinburgh. He raised the present action of interdict against the defender, who is an architect, in the Sheriff Court in Edinburgh in September 1997. The crave of the initial writ sought, firstly, interim interdict and interdict against the defender from carrying out work on the building 143, 145 and 147 Bruntsfield Place, Edinburgh. The remaining crave of the initial writ is as follows:

A motion for interim interdict was refused by the Sheriff on 22 September 1997 and an appeal against that decision to the acting Sheriff Principal was refused in November 1997. A debate on the parties' respective preliminary pleas was heard by the sheriff in June 1998. She sustained pleas to competency and to relevancy stated for the defender and pronounced decree of dismissal by interlocutor dated 13 July 1998. That decision was sustained on appeal to the Sheriff Principal by interlocutor dated 11 November 1998. It is against these two interlocutors that the present appeal is taken.

[2] The appellant in a careful and courteous presentation before us explained in some detail the position as set out in the pleadings and amplified from documents placed before us. It appears that in about 1993 the proprietors of the building comprising Nos. 143, 145 and 147 Bruntsfield Place, including the appellant, discussed a possible common repairs scheme for the building for which grant support under the provisions of Part XIII of the Housing (Scotland) Act 1987 ("the 1987 Act") might be made available by the then City of Edinburgh District Council. In 1994 the defender was invited by the proprietors, including the appellant, to take forward a proposal for such a scheme. The appellant was doubtful about the wisdom of doing so but he gave his consent to the defender proceeding to report on the costs of tenders for the repair scheme. In 1995 the defender reported to the proprietors with a tender from a firm of building contractors for that work. At this point the appellant withdrew from the proposal. He expressed a preference for statutory repairs. On 22 January 1996 the Council served upon each of the ten proprietors of the building a statutory notice to the effect that, as the local authority under the 1987 Act, the Council was satisfied that the building was in a state of serious disrepair and requiring the proprietors within a specified period of 90 days to execute "the works necessary to rectify the following defects - as specified in Schedule 2". The specified defects related to the following elements, the roof, stonework and masonry, drainage and services, structure and common stair. In particular, in relation to structure, the notice required the proprietors to ensure that the building was "wind and watertight". The appellant exercised his statutory right to appeal against the notice to the sheriff under Part V of the 1987 Act. His appeal was refused by Sheriff Robertson by interlocutor dated 8 January 1997 and the statutory notice was confirmed. Following this, the proposal for a common repair scheme was revived by the proprietors, other than the appellant, with the assistance of the defender. In May 1997 the defender reported that the City of Edinburgh Council Housing Department had advised that the repair grant application submitted for the other proprietors was now to be approved and that the building contractors from whom he had previously obtained a tender, were able to carry out the works as agreed originally in 1995 but at a slightly increased cost.

[3] Thereafter each of those proprietors entered into a Common Repairs agreement with the Council. In terms of the agreement the proprietors appointed the defender to act as consultant on their behalf for the purpose of arranging that the necessary works (called the Communal Works) were carried out to ensure that the building was put into a good state of repair in accordance with section 108 of the 1987 Act. The agreement made clear that the defender, as consultant, was employed by the proprietors who were parties to the agreement and not by the Council. The agreement also provided for each proprietor to be liable to reimburse the Council for a share of the cost of the Communal Works, based on equal shares. The agreement further stated that the estimated cost for each proprietor, after deducting that proprietor's entitlement to the repair grant under Part XIII of the 1987 Act, was £10,570 - the same figure as had been envisaged by the defender as the cost of the proposed works in April 1995. For its part the Council was to maintain a project account from which payments for the Communal Works would be made to the building contractor "on behalf of the co-owners of the subjects". It only remains to state that the works which were the subject of the repair grant were executed and were apparently completed by January 1999. Accordingly the appellant has accepted that he cannot now seek interdict against the defender and that his only remedy lies in what is sought in the third crave.

[4] His submissions can be shortly stated and are to be found within his pleadings. In the first place, he said that the works which were carried out on the building, were carried out to a standard higher than that required to meet a statutory notice. Section 108(2)(b) of the 1987 Act required the defects to be rectified to enable the building to be brought up to such a standard of repair "as is reasonable having regard to the age, character and location, and disregarding the decorative repair, of the house". He made reference to a letter from an officer of the Council dated 24 November 1997 which stated that there was a difference between works carried out through Property Services statutory notice which were required to meet a "wind and watertight condition" and work carried out through Repair Grant Conditions which required to meet a "30 year lifespan with normal maintenance" condition. The "wind and watertight" requirement appeared in the statutory notice served on the appellant himself. Accordingly the work was carried out to a standard higher than required. But, in the second place, the conditions for approval of a repair grant in terms of Part XIII of the 1987 Act require that all the proprietors should agree to the works, as provided in section 240(1). He had not done so. Therefore such works should not have been carried out without his consent. Nor should he be held bound to pay for work done to a higher standard than necessary. In the third place, the works carried out under the repair grant scheme went beyond the defects specified in the schedule to the statutory notice. Reference was made to such additional works in article 5 of the Condescendence. Some concerned common property and, for his interest in such property, he had given no consent to such work being executed. These were the works which, he averred, constituted "legal wrongs".

[5] Before we consider these submissions, it is appropriate to observe that it is unfortunate that throughout the various Notes by the Sheriffs and Sheriffs Principal in this case, there has been a misapprehension as to the legal relationships that existed between the various parties. The matter is best exemplified in the Sheriff Principal's Note in November 1998 where he says this:

As will be appreciated from what has been set out before, this is to misapprehend the position. The Council were not undertaking the work nor was the defender appointed by the Council, but was the agent of the proprietors who instructed the works. Some responsibility for this misapprehension may well lie with a lack of candour in the defender's pleadings. For instance, he does not meet the appellant's averments in Condescendence 2 to the effect that the works were being carried out with the assistance of a grant under Part XIII of the 1987 Act. In answer 5 he asserts that the works being carried out "are authorised in terms of section 108 of the Housing (Scotland) Act 1987". This misapprehension appears to have been present from an early stage in these proceedings. To some extent this misapprehension taints both the decision of the sheriff to dismiss the action on the grounds that she did and also the sheriff principal's decision on appeal.

[6] We say no more than that if the true position had been known as to who were the defender's principals and what was the extent of the works being undertaken under the repair grant scheme as compared to the works required to rectify the defects specified in the statutory notice, the issue of whether any legal wrong was being or was about to be committed, in respect of the appellant's rights of property in the building, might have become clearer at an earlier stage in the proceedings. In his reply before us, Mr. McGregor was constrained to admit - as he did most candidly - that it might have been appropriate to seek interim interdict against the defender as an architect issuing instructions on his principal's behalf, if the work being instructed fell outwith the statutory notice and in some way infringed the appellant's property rights in the building and was to executed without the appellant's consent. Accordingly, it would not be right to suggest that the action of interdict raised against the defender was necessarily raised against the wrong person. Nor, in the circumstances outlined, where it might have been shown that some part of the work to be carried out under the repair grant scheme fell outwith the statutory notice and was likely to damage the appellant's property interests, could it be said that there could never be any legal wrong. Furthermore, Mr. McGregor properly conceded that the Sheriff had been wrong to suggest that there was no authority in Scots law for a court to direct that work be undone, under reference to the case of Grahame v. Magistrates of Kirkcaldy 9 R (HL) 91.

[7] However, we consider that Mr. McGregor's submission that the order sought in the appellant's third crave is no longer appropriate, if it ever was, is well founded. The works have been completed. The defender no longer acts as architect for the proprietors under the repair grant scheme. Therefore he has no authority to instruct any work to be done on the building nor indeed has he any right of access to it. Just as the appellant has rights of property in the building, so have those others who are the present proprietors of the building. No work could be done without their consent and the defender has no authority to demand it. At one stage, Mr. McGregor suggested that the order was inappropriate because the other proprietors had not been called as parties to this action. But no plea to that effect has been stated for the defender. However, it is not necessary to determine whether or not we should have regard to the submission in the absence of a plea, since we consider that the order sought is no longer appropriate for the other reasons already stated. It is only fair to say that, in the end of the day, the appellant recognised the formidable difficulties in his way with regard to the terms of his crave. In particular, he agreed that he could not be precise as to what work, if any, he would wish to have undone, let alone how it was to be undone. Any order of the kind which the appellant seeks in his third crave, needs to be clear and specific since the person against whom the order is made, is entitled to know precisely what is being required of him by the terms of the order. Nothing said by the appellant would enable any such order to be framed, even if it were otherwise open to the court to grant an order of the kind sought.

[8] For these reasons, which are in some respects different from those given by each of the sheriff and sheriff principal for their decisions, we agree with the conclusion to which each came. That is to say, we consider that in the circumstances disclosed in the appellant's pleadings and as further amplified before us, there is no relevant basis to justify the making of an order in terms of the third crave and therefore the action falls to be dismissed. The appeal is accordingly refused.