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Cite as: [2002] ScotCS 296

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Royal Insurance (UK) Ltd v. AMEC Construction Scotland Ltd & Ors [2002] ScotCS 296 (21 November 2002)

OUTER HOUSE, COURT OF SESSION

A2381/02

OPINION OF T. G. COUTTS, Q.C.

Sitting as a Temporary Judge

in the cause

ROYAL INSURANCE (UK) LIMITED

Pursuers;

against

AMEC CONSTRUCTION SCOTLAND LIMITED AND OTHERS

Defenders:

________________

Pursuers: Maclean; DLA

First Defenders: Howie, Q.C.; MacRoberts

Second Defenders: Bowie, Simpson & Marwick

21 November 2002

This case appeared before me on the motion roll where the pursuers moved for commission and diligence in respect of a specification of documents. An open record had been lodged. The pursuers' specification was opposed by the first and second defenders in respect of call 1 which, before amendment, read as follows:

"1. All letters, faxes, notes, jottings, drawings, certificates, memoranda, invoices, delivery notes, analyses, records of samples, test results, approvals, applications, contracts, architects' instructions, minutes of site meetings, agendas, or any other documents of whatsoever type relating to the fill material inserted among the foundations and beneath the basement slab of the Words at 206-226/228 St Vincent Street, Glasgow referred to on Record ("the Works"), except insofar as prepared in contemplation of litigation, showing or tending to show the following:

a) the nature and source of the fill material placed among the foundations and beneath the basement slab during the course of the Works;

b) when and how the said fill material came to be delivered to the site of the Works and when and how it came to be incorporated into the Works;

c) whether or not the first defenders or anyone on their behalf asked the second defenders and/or the third defenders to approve the source of the fill material and/or the material itself and, if so, the nature of any steps taken by the second or third defenders to assess the fill material and their response to any such request."

Counsel who appeared were agreed that to obtain diligence in respect of a specification of documents at this stage, the party seeking it has to satisfy the test enunciated by Lord Cameron in Moore v Greater Glasgow Health Board, 1978 S.C. 123, which was expressed as follows at page 431:

"In a case where, after the commencement of proceedings, a party seeks a diligence for the recovery of documents it is, in my opinion, for him to show that they are necessary for the purpose of enabling him to make more pointed or more specific that which is already averred or to enable him to make adequate and specific replies to his opponent's averments. In short, what he must show is that the documents sought to be recovered are required to serve the purposes of the pleadings as those pleadings stand at the time the diligence is sought."

In McInally v John Wyeth & Brother Ltd. 1996 S.L.T. 1223, the Lord President said at page 1126L:

"In our opinion the test to be applied where the diligence is sought before the open record stage as described by Lord Cameron in Moore v Greater Glasgow Health Board, at p 131 (p 45) is one of necessity. The necessity for the recovery of documents at this stage has to be determined at the time when the diligence is being sought, not by looking into the future. The stage at which the diligence was sought in this case put this point sharply in issue. Defences had not yet been lodged, so the question had not yet arisen as to whether the pursuer was able to make adequate or specific replies to the defenders' averments."

It is noted that in McInally the court was considering a commission before defences had been lodged. Perhaps it is not surprising that the Inner House refused the motion in hoc statu to await the lodging of defences. The earlier stance adopted by the court about such specifications can be seen in Boyle v Glasgow Royal Infirmary 1969 S.C. 72. Boyle was discussed by Lord Cameron in Moore but Moore did not go so far as to repeat the comment of the Lord President at page 78 which was that a commission and diligence at open record was not granted unless the parties could "make out the highly special case which alone could justify the granting of specification of documents at this stage". "This stage" was, in Boyle, after an open record had been lodged. The restrictive view expressed in Boyle by the Inner House, of which Lord Cameron was a member, appeared to be somewhat modified by him in Moore. He explained the refusal in Boyle as being a refusal of a fishing diligence and not based on prematurity. One pauses to note that a fishing diligence would not be granted at any stage if it were properly so described. In McInally it would appear that further modification to the restrictive view has taken place. There the Lord Ordinary who had granted the commission and diligence was held to have been in error in looking into the future after defences were lodged. The court in McInally said this:

"It appears to us that the Lord Ordinary attached insufficient importance to the question whether it was necessary for the documents called for by the pursuer to be recovered at this stage. The test in Moore shows that an order for the recovery of documents should be granted if this is necessary in order to enable the pursuer to plead her case. But in the present case the pursuer was in possession of sufficient information to enable her to set out in her summons an intelligible case in reasonable detail. She was able to identify with reasonable precision the respects in which she was proposing to show that the defenders were in breach of their duty to take reasonable care. In this situation we are of opinion that the appropriate step would have been to refuse the diligence until defences had been lodged so that they could be examined to see what points were truly in issue between the parties."

Present practice, it seems to me, is that it is not exceptional to have a specification of documents sought and granted (normally without opposition) at the open record stage. In the present action this attitude is exemplified by the fact that no opposition was offered to the motion by the third or fourth defenders and no party offered opposition to call 2.

The actual position of the pleadings in the present action is in advance of Moore (defences but no open record) and McInally (no defences) in that there is an open record before the court. That record discloses that the defenders have not only pleas to the relevancy, which was the plea in Boyle, but also to lack of specification.

With that introduction, bearing in mind that it was accepted by counsel in the present case that the above quoted dicta in Moore applied, I deal with the question of whether the pursuers have shown that the specification is necessary for the purpose of making pointed or more specific that which has been averred or to make adequate and specific response to the opponents' averments. It has to be said that the defenders have to date been somewhat lacking in frankness. In response to pleadings that either factual situation a) or factual situation b) would ground a case there is no more than a denial. There are no specific averments (as yet) of matters which must plainly be within the defenders' knowledge. In other cases summary decree has been successfully sought where such an attitude has been adopted. The only serious argument in opposition to the specification in my view was on the ground that there was no necessity for it at this stage. It appeared to be conceded that such a specification could be granted after proof allowed.

The pursuers are tenants of substantial premises which now suffer from serious damage due to defects in construction. The terms of their lease include an obligation to rebuild, irrespective of the cause of damage, and the lease specifically provides that there is liability to rebuild even if the damage was caused by latent defect or defect in the design or construction of the building. Despite the lease being registered in the Books of Council and Session, the objecting defenders First and Second do not even admit that the pursuers are tenants, the first defenders also profess not to know that the pursuers are tenants and not to know of the terms of the lease.

The pursuers aver that material which could cause damage was used as in-fill during the construction. The second defenders profess not to know or admit what type of fill was used. The first defenders aver that they should have had a final certificate, which would have provided them with a complete defence, but did not get it. That might be because the architects did or did not give approval to the fill material and its source. In the whole circumstances the pursuers have quite properly pled cases on the basis that the second defenders did or did not know and approve. If they did not know then they may have failed in their duty or the first defenders may have deceived them.

Mr Howie for the first defenders argued that the pursuers had made averments which were sufficient and that they did not need to aver more at this stage and therefore it was not necessary for there to be a specification. The contractor must have put the fill in place and, so far as he was concerned, the rest was a matter of either relief or the blame of the architects or others. Esto cases, he said, are quite proper and although he did not concede that the case against him could go to proof if pursued, he appeared to accept that the pursuers would get a similar specification after a proof had been allowed.

Mr Bowie for the second defenders argued in similar vein although he professed to find some difficulty with the use of the word "source" in call 1. Since "source" is used in the pleadings and the contract, I could not see what point he was making.

It seems to me that, at least the second defenders must know if, as a matter of fact, they did or did not approve of the fill and its source which it is averred they had to do. Those averments they have met only with an explanation that they fulfilled all duties incumbent upon them together with an averment that they do not know or admit the type, density or composition of the fill material.

The pursuers' contentions that it was to make more pointed or specific the case they make on fact and law so that they were not wasting time and effort proceeding up blind alleys or persisting in esto cases which might turn out on fact to be otiose or to distract the course of the proof.

Having had regard to the entire case pled and particular regard to the situations above outlined, I have no hesitation in granting the pursuers' motion for a specification, as amended at the Bar to allow for excerpting.