Scottish Court of Session Decisions

[1] This action by two house owners against their former architects seeks damages alleging negligence in respect of, firstly, an over-certification in an interim certificate given by the architects, and, secondly, breach of their duties as architects in designing a roof which leaked.

[2] The action which has had a lengthy history and has been frequently amended involved, in respect of the claim for over-certification, an amount of £2,313 and in respect of the remainder of the sum of £50,000 sued for, a claim for the prospective cost of replacing a roof which, on averment, is less than £15,000. Although there were accordingly no averments to justify decree in terms of the sum sued for, that was not a point taken by counsel for the defenders.

[3] The contract between the pursuers and defenders was in relation to the construction of property at 30 Main Street, Pathhead. There was no express agreement as to the nature and extent of the defenders' appointment as architects. The defenders agreed to visit the site as appropriate and to inspect generally the progress and quality of the work. There was a contract concluded between the pursuers and the contractors on 18 April 1989 for the carrying out of works to the value of £50,604.19. In terms of clause 4.2 of the said contract the defenders were authorised to certify progress payments to the contractors in respect of the value of works properly executed. On certification of said sums they become payable by the pursuers to the contractors.

[4] Nine interim certificates were issued by the defenders. The eighth, about which exception was taken in the pleadings, was for the sum of £50,500 plus VAT. There was a retention of 5%. In respect of various small items the pursuers contend that certification of only £46,259 should have been made and that they therefore paid £2,313 which they did not require to do at that date under certificate 8. A further certificate, no. 9, was issued and it is apparent from that fact and from the pursuers' averments that the contractors remained on site and did work subsequent to interim certificate no. 8.

[5] The pursuers' bold contention was that since they had paid that sum in excess of what they should have paid at the time because the defenders' had over-certified, the defenders were therefore liable to the pursuers for the whole over-certified sum. That unattractive proposition was, naturally, challenged by the defenders. The defenders' contention was that the loss, if any, to the pursuers could not be so calculated. The pursuers were bound to pay for work properly executed and the fact that at the time certification was made some of the works included in the certificate were not at that time properly executed was not necessarily the measure of any loss the pursuers had sustained in relation to the works and the whole contract. In particular there were retentions provided for in the contract and there was further work which was unpaid.

[6] Some time after the issue of certificate 9, payment of which was not enforced at the due time by the contractors, the contractors had a Receiver appointed to them. No claim was ever made or enforced against the pursuers and that has resulted in the pursuers having no further liability beyond the sum paid under certificate no. 8 for the works which were done for them and further, in the event the pursuers retained all the retention monies. That meant, said the defenders, that the pursuers would be receiving a windfall on their contention in this action and not any reimbursement of loss.

[7] With the defenders' contention I agree. Cases were cited to indicate that in some circumstances the amount of the over-certification would be the measure of damage but each case depends on its own facts. In the present case there are no relevant averments, in my view, to indicate that the pursuers were in fact at the determination of the contract truly out of pocket or sustained any loss as a result of certificate no. 8. At worst, they may have paid some money before they would otherwise have had to do but that they were owing the contractors some money at the time of certificate no. 8 and more money at the time of certificate no. 9 and more so until the termination of the contract cannot be denied. In my opinion the only loss the pursuers could be thought to have sustained was any interest on the £2,300 they paid before they had to pay. That is however not their claim and since I hold that there are no relevant averments to support the claim made, that the defenders should pay to them in the above circumstances the whole amount of the sums certified for items which it is alleged were not properly executed, has no merit in law or equity.

[8] I accordingly decline to remit to probation the pursuers' averments relating to alleged over-certification by the defenders.

[9] The pursuers' other claim against the defenders cannot in my view be determined without a proof, subject only to the deletion of one of their grounds of fault.

[10] The pursuers' claim is that the defenders failed to design a roof which did not leak. They say that that was defective design and if true that would undoubtedly sound in damages. They say that the roof has to be replaced and they are entitled to enquiry about that matter. Their averments are sparse but adequate to allow proof before answer.

[11] Exception, however, was taken to an averment of fault in Condescendence 7. There, after narrating succinctly duties relevant to exercising ordinary skill and care as architects in designing a leak-free roof, the following passage appears:

In my opinion that averment is self-contradictory and meaningless. If the design was defective the result of that defect was, according to the pursuers, that the roof leaked. It is difficult to understand how a design which was not defective in the way averred required to be reviewed and changed if there was leaking. The nub of the pursuers' factual case in relation to leaking was that it was caused by faulty design and nothing else. I shall accordingly delete from the record the sentence starting "Separatim" on page 30 in Condescendence 7.

[12] With regard to the attack made by counsel for the defenders upon averments specifying detailed defects in the drawings for the construction of the roof it seems to me that these averments could be relevant in determining the alleged deficiencies of the design. In my view they do not amount to a distinct act of negligence or ground of fault beyond that of defective design. Although the pursuers' averments in relation to that matter in Condescendence 7 are meagre they do contain sufficient to put the defenders on notice that what is being attacked in this action is the whole design of the roof as proposed by them. How far details of design are relevant in that regard can only be determined after proof. They may well have a bearing on the question of the overall design and its sufficiency.

[13] I shall accordingly allow to the pursuers a proof before answer of their averments relating to defective design only under deletion of the sentence above noted in Condescendence 7.