Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> University Court of the University of Glasgow v. Melville Dundas Ltd & Ors [2004] ScotCS 99 (23 April 2004)
URL: http://www.bailii.org/scot/cases/ScotCS/2004/99.html
Cite as: [2004] ScotCS 99
[New search] [Help]
University Court of the University of Glasgow v. Melville Dundas Ltd & Ors [2004] ScotCS 99 (23 April 2004)
|
OUTER HOUSE, COURT OF SESSION |
|
|
A1743/00
|
OPINION OF R F MACDONALD QC (Sitting as a Temporary Judge) in the cause THE UNIVERSITY COURT OF THE UNIVERSITY OF GLASGOW Pursuers; against (FIRST) MELVILLE DUNDAS LIMITED; (SECOND) E. M. MacKENZIE & CO LIMITED and (THIRD) L. C. H. GENERATORS LIMITED Defenders:
________________ |
Pursuers: Jones, Solicitor; Brechin Tintall Oatts
First Defenders: Connell, QC, Solicitor; McGrigor Donald;
Second Defenders: Bain, Advocate; The Anderson Partnership;
Fourth Defenders: Brown, Advocate; McClure Naismith
23 April 2004
Introduction
[1] This is an action brought by The University Court of the University of Glasgow against three separate defenders arising out of the execution of building works at the campus of Glasgow University between the West Medical Building and the Biochemistry Building in 1995. The works included the construction of a link building and work at the pursuers' existing electricity sub-station to provide a new power source. The first defenders were the main contractors. The second defenders were electrical sub-contractors engaged by the first defenders. The third defenders supplied and connected temporary generators on the instruction of the second defenders under a contract of hire. All three defenders have tabled general pleas to the relevancy of the case averred against them by the pursuers. When the case called on procedure roll Mr Connell for the first defenders intimated that he was insisting upon their plea to the relevancy. Counsel for each of the second and third defenders made offers of a proof before answer and then withdrew. The debate therefore proceeded solely on the basis of the first defenders' plea to the relevancy of the pursuers' case against the first defenders.
The terms of the plea to the relevancy
[2] Before I come to deal with the substance of the arguments advanced by Mr Connell on behalf of the first defenders, it is appropriate that I should consider a preliminary point raised by Mr Jones on behalf of the pursuers concerning the content of the first defenders' plea to the relevancy. That plea is in the following terms:
"The pursuers (sic) averments being irrelevant et separatim lacking in specification the action should be dismissed."
The point arose in this way. The first two pleas-in-law for the pursuers are in the following terms:
"1. The Pursuers having sustained loss and damage due to the negligence of the Second and Third Defenders et separatim the breach of contract of the First Defenders are entitled to reparation therefor from them.
2. The Pursuers having sustained loss and damage due to the negligence of the Second and Third Defenders, are contractually entitled to indemnify therefor from the First Defenders."
The Note of Argument for the first defenders states that they maintain that their first plea-in-law should be sustained and the action dismissed; alternatively, that the pursuers' case so far as based on breach of contract by the first defenders should not be admitted to probation; or alternatively that the pursuers' averments thereinafter specified should not be admitted to probation. It became clear in the course of Mr Connell's submissions for the first defenders that he was not seeking dismissal of the action against the first defenders: his motion was limited to asking the court to delete the case of breach of contract against the first defenders, failing which to refuse to admit certain averments of breach of contract to probation. Mr Jones submitted that the first defenders' first plea-in-law was, as he put it, "not sufficient" to seek the repelling of the pursuers' first plea-in-law insofar as directed against the first defenders since the first defenders' first plea-in-law sought dismissal of the whole action. The point is differently formulated in the first defenders' written submissions tendered at the hearing, in which the proposition set forth is that the first defenders having no plea-in-law to exclude the averments based on breach of contract, the motion to exclude such averments is incompetent. Reference was made to a passage in MacPhail, Sheriff Court Practice (1st Ed.) at page 287, para. 9-47, which is in the following terms:
"... the Court will not sustain a plea which is not stated on record, and a party seeking to put forward an argument unsupported by an appropriate plea must seek leave to amend his pleadings by adding the plea."
In support of that statement the learned author refers to two cases, namely, Robb v Logiealmond School Board (1875) 2 R. 417, per Lord President Inglis at page 422, and Kelly v Edmond Nuttall Sons & Co (London) Ltd 1965 SC 427 at page 434. In response Mr Connell submitted that the first defenders' first plea-in-law was adequate to entitle him to argue that the averments in support of the pursuers' case of breach of contract and that part of their first plea-in-law based on breach of contract directed against the first defenders should be deleted on the principle that the greater includes the lesser. He submitted that there was no requirement for him to include a separate plea to the effect that the averments in support of the pursuers' case of breach of contract should be deleted and that part of their first plea-in-law should be repelled.
[3] In my opinion Mr Connell was entitled, on the basis of his general plea to the relevancy of the pursuers' averments, to argue at debate for the deletion of certain averments made by the pursuers and the repelling of part of the pursuers' first plea-in-law, and the point taken by Mr Jones is misconceived. It seems to me that the point taken by Mr Jones proceeds upon a misunderstanding of the passage quoted from MacPhail's Sheriff Court Practice and the two cases cited therein. It would, of course, not be competent for a party to seek to argue at debate a discrete point of law (for example, limitation or prescription) which was not the subject of a distinctly applicable plea-in-law, but that is not what the first defenders in this case are seeking to do. By their general plea to the relevancy they have given the pursuers notice that the relevancy of their averments will be the subject of challenge. There is no requirement for them to insert a further plea-in-law, or further pleas-in-law, challenging the relevancy of certain specific averments. In my opinion the first plea-in-law tabled by the first defenders entitles them to challenge the relevancy of the whole or any part of the averments made against them by the pursuers. In any event, even if the first defenders sought only dismissal of the action, it would still be open to the court to sustain their argument only in part by deleting such of the pursuers' averments as it judged to be irrelevant. It has for long been the accepted practice for a defender, on the basis of a general plea to the relevancy, to challenge the relevancy of the whole or any part of a case made against him, and it has never, so far as I am aware, been suggested until now that there was anything incompetent in asking for deletion of part of a case on the basis of a general plea to the relevancy seeking dismissal of the action. Moreover, Rule of Court 22.4 provides that where a cause has been appointed to the Procedure Roll, the court may, at its own instance or on the motion of a party, ordain a party to lodge in process a concise note of argument consisting of numbered paragraphs stating the grounds on which he proposes to submit that any preliminary plea should be sustained. As a matter of practice the court always ordains a party seeking to argue a preliminary plea at procedure roll to lodge such a note of argument, usually within 28 days of the cause being appointed to the procedure roll. The purpose of the note of argument is to give fair notice to the other party or parties of the point or points to be argued. I can find nothing in the passage referred to in MacPhail's Sheriff Court Practice or in the two cases cited which runs counter to anything I have just stated.
Submissions for the first defenders
[4] In opening his submissions for the first defenders Mr Connell drew attention to the precise terms of the first and second pleas-in-law for the pursuers (which I have quoted above). He indicated that he was presenting no argument in respect of the pursuers' second plea-in-law, which was based on the contractual indemnity granted by the first defenders to the pursuers. His argument was directed solely to the words "et separatim the breach of contract of the first defenders" in the pursuers' first plea-in-law and the supporting averments by the pursuers. The pleadings contained a series of extremely detailed technical complaints involving acts done by, and in the province of the work of, the second and third defenders, but the pursuers were also seeking to plead a separate case of breach of contract against the first defenders. The distinction between the case against the first defenders based on breach of contract and that based on the contractual indemnity was not just a technical one, for if the pursuers' first plea-in-law were repelled insofar as directed against the first defenders, that would have the practical effect of removing the first defenders from the action.[5] Under reference to his Note of Argument, Mr Connell went on to submit that the pursuers had failed adequately to plead a separate case against the first defenders in respect of what were alleged to be breaches of contract by the first defenders themselves. The pleadings dealt with electrical matters and acts of the second defenders, with a case of breach of contract against the first defenders tagged on at the end. The averments in condescendence 3, which related to very technical matters, dealt with alleged acts and omissions of the second and third defenders. Condescendence 4 contained averments about the particular method used for an earth connection to the generator. This was an issue between the pursuers and the second defenders about whether the precise technical steps taken by the second defenders to provide an earth connection were adequate in the circumstances. Condescendence 5 averred that during the weekend of 7-8 October 1995 a high voltage surge of electricity flowed from the generator and into the Biochemistry Building across all three phases of the building's electricity supply system, causing extensive damage to equipment within the building and the storage freezer to cut out, resulting in the loss of its contents. Had the electrical supply system provided by the temporary generator been connected to earth, there would not have been a surge in voltage. Condescendence 6 cited certain advice, guidance and regulations and averred that any electrician of ordinary skill exercising ordinary care would have known of them. Condescendence 7 contained the pursuers' case of negligence against the second defenders and Condescendence 8 contained their case of negligence against the third defenders.
[6] The pursuers' averments of breach of contract against the first defenders were contained in Condescendence 9. These averments are as follows:
"Further and in any event, the Pursuers' loss and damage was caused by the breach of contract of the First Defenders. In the absence of specified standards for workmanship, the workmanship for the Works was to be of a standard appropriate to the Works and in accordance with good building practice. Reference is made to Clause 8.1.2 of the Conditions of Contract and Clause 110 (page 46/59, 1/41) of the preliminaries. In respect of electrical works to the Pursuers' property, the appropriate standard was the standard of skill and care reasonably to be expected of an electrician of ordinary competence. As hereinbefore condescended upon that standard was not met as hereinbefore condescended upon. Clause 1 70 of the preliminaries required the first defenders to ensure that operatives were appropriately skilled and experienced for the type and quality of work. The second and third defenders were not so skilled and experienced, as hereinbefore condescended upon. The first defenders were in breach of their contract with the pursuers. Further the first defenders were obliged in terms of clause 1 60 of the preliminaries to ensure that all trades are provided with necessary details of related types of work. Before starting each new type of work the first defenders were required to ensure that previous related work was appropriately complete as to a suitable standard and in a suitable condition to receive the new work. They were required to ensure that all necessary preparatory work had been carried out including the provision for services. In so far as the electricity supply system had been disconnected and cut from the earth the first defenders did not comply with clause 160. Clause 510 of the preliminaries required the first defenders to provide constant management and supervision of the work and that all significant types of work must be under the close control of competent trade supervisors to ensure maintenance of satisfactory quality. Clause 515 of the preliminaries required the first defenders to employ a fill time services co-ordinator. The first defenders were also in breach of clauses 160, 510 and 515 of their contract as more fully condescended upon in the foregoing Articles of Condescendence. Had they complied therewith the second and the third defenders would not have carried out the electrical works in the manner that they did. As a result of the First Defenders' breaches of contract, the Pursuers have sustained loss and damage which otherwise would not have occurred."
Mr Connell submitted that the pursuers had not made any averments of fact in any of the previous articles of condescendence which amounted to a breach of contract on the part of the first defenders. He referred to the averments by the pursuers in condescendence 2 that the second defenders were specialist electricians registered with the National Inspection Council and in condescendence 3 that it was the pursuers who isolated the electrical supply to the buildings and disconnected the electrical supply at the sub-station; that it was the pursuers who issued a permit to work to the second defenders; that the pursuers "handed over the site" to the second defenders, and that "the second defenders by virtue of the permit to work assumed responsibility for the relevant works". That narrative negatived any basis for a finding of breach of contract by the first defenders, or was at least inconsistent with such an assertion, or would require clear and specific pleading to justify such an assertion. The pursuers' pleadings contained detailed, complex and specialised points about the technicalities of electrical works. There was nothing in these pleadings to support any allegation of breach of contract by the first defenders. Moreover, the documents to which the pursuers had referred in condescendence 6 were not said to be contract documents or documents which were or ought to have been within the knowledge of the first defenders and reliance on them by the pursuers negatived, or at least did not support, any claim against the first defenders.
[7] In pursuing what he described as "a slight digression", Mr Connell submitted that the pursuers' pleadings lacked candour on a critical matter which must have been within their knowledge. Both the second and third defenders had averred in answer 3 that the works complained of were carried out in accordance with a Method Statement said to have been approved both by the pursuers and by their consulting engineers. The pursuers had not responded to that averment, which if accepted would prima facie negative any claim, at least so far as directed against the first defenders. Mr Connell submitted that, in the context of the pleadings as a whole, the pursuers' pleadings should be read as implicitly admitting these averments and thereby rendering their claim irrelevant in the absence of explanation.[8] Turning to examine in detail the averments in condescendence 9 which I have quoted above, Mr Connell posed the following question: "In what way were the first defenders in breach of contract?" There was an averment in condescendence 9 that the first defenders were obliged to employ a full time services co-ordinator, but it was not averred that they had not done so and it was not averred that any failure to do so was causally connected to any loss. It was averred that the first defenders had to ensure that operatives were appropriately skilled and experienced for the type and quality of work and that the second and third defenders were not so skilled and experienced "as hereinbefore condescended upon", but there were no factual averments elsewhere in the pursuers' case detailing any lack of skill or experience on the part of the second or third defenders. Similar arguments applied to the averments about ensuring that all trades were provided with the necessary details of related types of work (which did not appear to relate to the circumstances) and to the averments about carrying out of preparatory work and management and supervision. In summary, Mr Connell submitted that condescendence 9 represented an attempt by the pursuers to create a case of breach of contract against the first defenders without much substance at all, and the first defenders should not be required to meet such a case. He accordingly moved that the first defenders' first plea-in-law should be sustained to the extent of repelling the pursuers' first plea-in-law insofar as directed against the first defenders and deleting the averments of breach of contract in condescendence 9 quoted above.
Submissions for the pursuers
[9] In opening his response on behalf of the pursuers Mr Jones accepted that their pleadings could have been better framed, but submitted that they were nevertheless relevant and gave the first defenders fair notice of the evidence to be led against them at a proof before answer. A summary of what the pursuers sought to prove was set out in their averments in condescendence 3. In accordance with the Method Statement, the pursuers had isolated the electricity supply at the generation end. They had carried out the isolation, but not the disconnection, process. The first defenders' error was to think that the case against them was one of fault, whereas it was a breach of contract case. Reference was made to Keating on Building Contracts (7th Ed., 2001), page 354, para. 12-25, where it is stated:
"The contractor, in the ordinary case and subject to any term to the contrary, is liable to the employer for any default by the sub-contractor in carrying out the terms of the main contact, for the contractor is merely securing the vicarious performance of his own obligations."
In Condescendence 2 it was averred that the form of contract on which the first defenders were engaged was the Scottish Building Contract Contractor's Designed Portion With Quantities January 1993 Revision and the conditions of contract were the conditions of the Standard Form of Building Contract Private Edition With Quantities (1980 Edition), subject to certain amendments and modifications. The terms of the contract were incorporated into condescendence 2. The clauses of the contract which the first defenders were alleged to have breached were referred to, although their full terms were not set out, in condescendence 9. All that, said Mr Jones, gave the first defenders fair notice of the breach of contract case which they had to meet. Mr Jones then went on to deal in turn with each of the alleged specific breaches of contract set out in condescendence 9. I shall, so far as necessary, refer to his submissions on the detailed averments in condescendence 9 when I come to consider those averments below.
Discussion
[10] In my view the averments of breach of contract set out in condescendence 9 represent slipshod pleadings. They consist of a mixture of references to the terms of the contract, averments of fact and legal propositions. It would have simplified the task of everyone involved in the case if the pursuers had distinctly set out in separate articles of condescendence each separate allegation of breach of contract, citing the terms of the relevant provision of the contract said to have been breached, together with supporting averments of the facts which were said to have amounted to a breach of contract. I consider that it is necessary to examine separately each of the specific respects in which it is said by the pursuers that the first defenders breached the contract, and this I now turn to do.
(i) Clause 8.1.2 of the conditions of contract and Clause 110 of the preliminaries
[11] Under reference to these provisions the pursuers aver that, in the absence of specified standards for workmanship, the workmanship for the works was to be of a standard appropriate to the works and in accordance with good building practice and that the appropriate standard for the electrical works, namely, the standard of skill and care reasonably to be expected of an electrician of ordinary competence, was not met "as hereinbefore condescended upon". It is clear that the pursuers are here seeking to hold the first defenders liable in contract for the loss and damage caused by the alleged negligence of the second defenders. Mr Jones submitted simply that the case under this head was relevant. I heard no detailed submissions from either side on the construction to be placed upon these clauses and, in particular, whether their terms were apt to render the first defenders liable under contract for the loss and damage allegedly caused by the negligence of the second defenders. I am therefore unable to conclude at this stage that these averments are irrelevant.
(ii) Clause 1 70
[12] Under reference to this clause it is averred by the pursuers that it required the first defenders required to ensure that operatives were appropriately skilled and experienced for the type and quality of work and that the second and third defenders were not so skilled and experienced "as hereinbefore condescended upon". The difficulty for the pursuers is that there are no averments elsewhere in the case relating to the degree of skill and experience of any operatives of the second and third defenders. Mr Jones was constrained to admit that this was the case. I am therefore satisfied that these averments are irrelevant and cannot be admitted to probation.
(iii) Clause 1 60 of the preliminaries
[13] Under reference to this Clause the pursuers aver that the first defenders were obliged to ensure that all trades were provided with necessary details of related types of work and that before starting each new type of work the first defenders were required to ensure that previous related work was appropriately complete and to a suitable standard and in suitable condition to receive the new work. It is further averred that the first defenders were required to ensure that all necessary preparatory work had been carried out including provision for services and that, in so far as the electricity supply system had been disconnected and cut from the earth, the first defenders did not comply with Clause 1 60. Mr Jones submitted that these averments were relevant in light of the averments against the second defenders in condescendence 7 to the effect that the second defenders, and, in particular, their foreman disconnected the earthing system. It is, therefore, clear that the case against the first defenders under Clause 1 60 proceeds on the basis of their vicarious liability for the acts of the second defenders. It is not averred how the disconnection in question amounted to a failure to ensure that all trades were provided with necessary details of related types of work, that the previously related work was appropriately complete and to a suitable standard and in a suitable condition to receive the new work and that all necessary preparatory work had been carried out including provision for services. It seems to me that Clause 1 60 has nothing to do with the events which are averred by the pursuers. There is a lack of supporting factual averments and in my opinion the pursuers' case based on a breach of Clause 1 60 is irrelevant.
(iv) Clause 510 of the preliminaries
[14] The pursuers aver that this clause required the first defenders to provide a constant management and supervision of the work and that all significant types of work must be under the close control of competent trade supervisors to ensure maintenance of satisfactory quality. Mr Jones pointed out that it was averred in condescendence 3 that the Method Statement provided that the relevant works were to be carried out under the direct supervision of the second defenders' experienced electrical foreman, but he had to accept that the pursuers had no factual averments of lack of management or supervision. On the assumption that this clause could apply in the circumstances, I am of the opinion that the averments of the pursuers based upon it are irrelevant for lack of supporting factual averments.
(v) Clause 515 of the preliminaries
[15] The pursuers aver that this clause required the first defenders to employ a full time services co-ordinator. There is no averment that the first defenders did not employ a full time services co-ordinator. That being so, this averment must be held to be irrelevant.
Decision
[16] As I am of the opinion that the pursuers' averments of breach of contract by the first defenders based on clauses 1 60, 1 70, 510 and 515 of the preliminaries are, for the reasons given above, irrelevant I shall refuse to admit them to probation by deleting them and sustain the first plea-in-law for the first defenders to that extent. The pursuers being content that the action should proceed by way of proof before answer, I shall thereafter allow a proof before answer against all three defenders.