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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Chartwell Land Investments Ltd v Amec Construction Scotland Ltd [2001] ScotCS 63 (15 March 2001)
URL: http://www.bailii.org/scot/cases/ScotCS/2001/63.html
Cite as: [2001] ScotCS 63
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OUTER HOUSE, COURT OF SESSION |
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A2633/00
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OPINION OF LORD BONOMY in the cause CHARTWELL LAND INVESTMENTS LIMITED Pursuers; against AMEC CONSTRUCTION SCOTLAND LIMITED Defenders:
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Pursuers: No appearance
Defenders: S Smith, MacRoberts
15 March 2001
[1] On 23 February 2001 I refused the defenders' motion for warrant to arrest and inhibit on the dependence against the third party Norwest Holst in respect of whom they had obtained warrant for service on 13 February. On 1 March 2001 I granted leave to reclaim against the interlocutor of 23 February.
[2] The motion which I refused was made under paragraph 26.3 of the Rules of the Court of Session 1994 which is in these terms:-
" 26.3-(1) A defender who applies for an order for service of a third party notice may apply for a warrant to use any form of diligence which would have been permitted under rule 13.6(b) or (c) (warrants for diligence in summonses) had the warrant been sought in a summons in a separate action.
(2) An application for a warrant under paragraph (1) shall be made by motion -
(a) at the time of applying for the third party notice; or
(b) if not applied for at that time, at any stage of the cause thereafter".
These provisions fall to be compared with paragraph 13.6 governing the situation where a pursuer presents a summons for signetting. That paragraph is in the following terms:
"13.6 When signeted, a summons shall be authority for -
(a) service on the defender designed in the instance; ....
(c) subject to any other provision in these Rules and the provisions of any other enactment or rule of law, diligence by -
(i) inhibition on the dependence of the action;
(ii) arrestment on the dependence of the action where there is a conclusion for the payment of money;
(iii) arrestment in rem, or
(iv) dismantling a ship
where a warrant in the appropriate form in Form 13.2-A has been inserted in the summons;"
[3] From the distinct terms of these rules I concluded that it was within my discretion whether to grant the motion. The granting of identical warrants in respect of a summons is automatic on presentation of the summons for signetting. A defender who seeks to do diligence against a third party must apply by motion even when the warrant is sought at the time of applying for the third party notice.
[4] In this action the pursuer claims £347,002.58 from the defenders as damages for breach of contract and breach of duty. The defenders contracted with the pursuers to design and build a B & Q unit in terms of a standard form Scottish Building Contract Committee Building Contract. The pursuers maintain that the defenders are in breach of that contract in respect of the defective design and application of fire protection cladding. In response the defenders maintain that the contract produced by the pursuers does not accurately reflect the terms of the agreement, that all outstanding defects in workmanship have been rectified, and that the pursuers have approved the final account.
[5] The defenders now seek to involve the third party, their sub-contractor, as the party responsible for the detailed design and construction of the fire protection. The defenders maintain that, esto there was any breach of contract, that breach was caused by breach by the third party of their obligations in their sub-contract with the defenders and that the defenders should be relieved by them of "any liability thereanent". Similarly in relation to breach of duty they say that, esto there was any such duty of care as averred by the pursuers incumbent on them, it was fulfilled by the appointment of reputable specialist sub-contractors. In relation to the question of breach of duty they further maintain that, esto there was a duty of care owed by the defenders to the pursuers, there was also a duty of care in the same terms owed by the third party to the defenders, and, esto there was a breach of any such duty of care owed by the defenders to the pursuers, the breach was caused by the third party's breach of duty and the defenders should be relieved by the third party of any liability thereanent.
[6] The defenders do not hint at the possibility of any liability on their part. In relation to the third party they make no averments on the merits in respect of which it is conceivable that a situation could arise where they would actually seek relief. They quantify no claim against the third party.
[7] These were the considerations which led to my refusing the motion.