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Cite as: [2003] ScotCS 311

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Anderson v. Express Investment Company Ltd & Anor [2003] ScotCS 311 (11 December 2003)

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

Lord President

Lord Marnoch

Lord Caplan

A1794/01

OPINION OF THE COURT

delivered by LORD MARNOCH

RECLAIMING MOTION

in the cause

RICHARD N.M. ANDERSON

Pursuer and Reclaimer;

against

(FIRST) EXPRESS INVESTMENT COMPANY LIMITED and (SECOND) THE CITY OF EDINBURGH COUNCIL

Defenders and Respondents:

_______

Act: Party (Pursuer and Reclaimer)

Alt: Dewar, Q.C.; Drummond Miller, W.S. (First Defenders and Respondents)

11 December 2003

[1] This is a reclaiming motion against an interlocutor of the Lord Ordinary dismissing the action.

[2] As originally framed, the pursuer's pleadings maintained that the first and second defenders had fraudulently and illegally induced the issuing to the pursuer of certain statutory notices and accounts. However, prior to the hearing of the

reclaiming motion the pursuer abandoned the action insofar as directed against the second defenders. In the result the reclaiming motion was confined to a consideration of the pursuer's fifth conclusion, in which the pursuer claims payment by the first defenders of the sum of £1,000, and of his second and third pleas-in-law. According to the second plea-in-law, the pursuer suffered loss, injury and damage through the "fault" of the first defenders.

[3] At the outset of his submissions the pursuer, who represented himself, informed us that he intended to argue only Grounds 4 and 8 of his written Grounds of Appeal but, as the hearing developed, it became apparent that not even these grounds properly reflected the real substance of his argument which can, we think, fairly be summarised in the manner following.

[4] The pursuer is the owner of a second floor flat in a tenement building at 2 Nicolson Square, Edinburgh. On 8 October 1988 a fire occurred in the tenement, the seat of the fire being apparently within the cavity between the floor of the pursuer's second floor flat and the ceiling of the subjacent flat owned by the first defenders. The fire damaged, amongst other things, a load-bearing beam in that cavity which was in part in the ownership of the pursuer. Following the fire it was hoped that a common scheme could be agreed between the proprietors of the tenement for repair of all the fire damage but, in the event, agreement on such a scheme could not be reached. Thereafter, according to him, without the knowledge of the pursuer who was living elsewhere, the first defenders instructed the carrying out of repairs to the damaged beam and to the hole between the first and second floor flats which had resulted from the fire. In that connection the pursuer avers that contractors were instructed to

"trespass on to the property of the pursuer and there place pieces of wood on either side and through-bolt the first [and second] floor fire-damaged load-bearing beam owned by the pursuer before adding ash and reflooring the pursuer's room."

The pursuer maintains, however, that the foregoing repairs were inadequate and unsatisfactory and that, in short, they constitute an encroachment on his property in respect of which he is now entitled to claim damages.

[5] Although the foregoing analysis was not, we think, clearly focussed before the Lord Ordinary and can be extracted from the pursuer's pleadings only with considerable difficulty, we accept that thus far there might be a case for enquiry. The question remains, however, whether the pursuer has set forth relevantly and with sufficient specification a basis for his claim for damages which, in terms of the fifth conclusion, is for a total of £100,000. As to that matter it is appropriate to quote, in full, Condescendence 11 insofar as applicable to the case of encroachment:

"The loss, injury and damage sustained by the pursuer is as follows:- The pursuer carried 'new for old' insurance and was in terms of his Policy entitled to have said beam replaced by a new beam. By their trespass upon his property and their actions in respect of said beam the first named defenders have damaged the pursuer by leaving him with a patched-up beam which is bound to sag over time, may fail, and will now be more expensive to remedy. They have given the pursuer inferior flooring which he did not want and will have to pay to remove. They have prevented the pursuer from carrying out a tenemental repair. They have caused the pursuer to have to pay for alternative accommodation while his premises were uninhabitable. They have caused him inconvenience, stress and distress. They have caused the pursuer damage by the improper actions of their Agents. ... The sum sued for is reasonable. With reference to the averments in answer, the whole actions of the first and second defenders have left the pursuer with a main load-bearing beam in his property that has been weakened and through-bolted and is likely to collapse with danger of damage to people and property and they have also caused a substantial diminution in value in the pursuers (sic) property and considerable losses to him. The averments of the first and second defenders in answer are denied save insofar as coinciding herewith."

[6] In our opinion, and in agreement with the submissions made by Mr. Dewar, Q.C. for the respondents, the foregoing averments are wholly irrelevant and/or lacking in specification for a number of reasons.

[7] In the first place, it can be seen immediately that there is an inherent contradiction between, on the one hand, the averments that the pursuer has been left with "a patched-up beam which is bound to sag over time, may fail, and will now be more expensive to remedy" as also "inferior flooring which he (the pursuer) did not want and will have to pay to remove" and, on the other hand, the averment that the defenders' actings have "caused a substantial diminution in value in the pursuer's property and considerable losses to him". When faced up with this contradiction the pursuer at one point in his submissions maintained that the damages claimed were such as would enable the property to be properly repaired but at another point in his submissions suggested that they would reflect the "difference in value" between the flat in its present condition and the condition it would have been in if proper repairs had been effected. It is plain that these contentions reflect quite different approaches and in our opinion that simply will not do in a case, such as the present, which, on any view, is very peculiar on its facts. In such circumstances the defenders are, we think, entitled to clear notice regarding the basis of any claim which it is sought to establish in evidence.

[8] Matters, however, do not end there because, as it seems to us, neither approach to damages, even when viewed in isolation, is expressed with anything like sufficient specification. On the face of things pieces of wood through-bolted on the fire-damaged beam together with the unwanted flooring could easily enough be removed and, if that were done, the pursuer would immediately be restored to the position he was in prior to the encroachment. Assuming the defenders refused to remove the encroachment, the cost of the pursuer's doing so would doubtless then constitute his claim for damages. But that is not what the pursuer seeks in the opening averments of condescendence 11. Instead, the claim seems to be that he has somehow been "prevented" from carrying out a tenemental repair or, at all events, that the carrying out of such a repair will now be "more expensive". These, however, are mere assertions and there is no specification whatever as to how or why a tenemental repair (whatever that may mean) has been "prevented" or how or why overall repairs have become "more expensive" to the tune of £100,000.

[9] As to the alternative approach to damages, which is but briefly adumbrated towards the end of Condescendence 11, we again find the position to be wholly unsatisfactory. The pursuer did not claim that the sum sued for could be justified by making a comparison between the value of the property in its present condition and the value of the property in its damaged state prior to the encroachment. Instead, he advocated a comparison between its present value and its value on the assumption that all the fire damage had been made good by proper and adequate repairs. To make this approach meaningful it would clearly be necessary to take into account not only the respective values but the cost of all the repairs which would have to be assumed to have been carried out. The difficulty is, however, that there is quite simply no foundation in averment regarding any of these matters. In part this may be because the pursuer, in the course of his submissions to us, was inclined to build in an assumption that the costs of repair in question would have been paid by his insurance company. Unfortunately, that is wholly beside the point so far as the defenders are concerned.

[10] In the result, however one looks at the pursuer's averments of loss in this case, it seems to us that, in the end, there is really no answer to the criticism that, taken together or in isolation, the two approaches contained in Condescendence 11 are essentially irrelevant and lacking in specification. The references to the need for alternative accommodation, inconvenience and distress cannot be separated from one or other or both of these approaches. In all these circumstances we have no alternative but to refuse this reclaiming motion and adhere to the interlocutor of the Lord Ordinary.

[11] It only remains to be added that when this case was at avizandum the pursuer enrolled a motion craving receipt of a Minute of Amendment (No. 45 of process). We refused that motion as introducing entirely new matters and as coming far too late, particularly having regard to the history of this case. However, we should note for the record that while a proposed alteration to Condescendence 11, which formed part of the proposed amendment, might have cured certain of its deficiencies, it might well have exacerbated others and it is quite unlikely that, even with the benefit of the amendment, we would have been justified in sending the case to any form of enquiry.