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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Cleland & Ors v. Smith & Ors [2005] ScotCS CSIH_47 (29 April 2005)
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Cite as: [2005] ScotCS CSIH_47, [2005] CSIH 47
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Cleland & Ors v. Smith & Ors [2005] ScotCS CSIH_47 (29 April 2005)
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord President Lord Nimmo Smith Lord Emslie
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[2005CSIH47] XA60/04 OPINION OF THE COURT delivered by THE LORD PRESIDENT in APPEAL from the Sheriffdom of Grampian, Highlands and Islands at Aberdeen in the cause WILLIAM PATON CLELAND and OTHERS, the Trustees of John David Paton Pursuers and Respondents; against GEORGE W. SMITH First Defender and Appellant; DEREK L. YOUNG Second Defender; and JAMES D. ANDERSON Third Defender: _______ |
Act: Summers, Solicitor Advocate; Henderson Boyd Jackson (Davies Wood Summers, Aberdeen) (Pursuers and Respondents)
Alt: Benyon; Russell Jones & Walker (Lefevre Litigation, Aberdeen) (1st Defender and Appellant)
29 April 2005
[1] This action in the Sheriff Court arises out of a building contract for the construction for the pursuers of a garage in Old Aberdeen by the first defender (to whom we will refer as "the defender"). The contract was entered into as long ago as 1989. For this purpose the pursuers appointed architects to design and supervise the construction. On 9 February 1990 the certificate of practical completion was issued. No certificate of making good defects was issued, and the retention sum of £2413.86 remains outstanding. [2] In May 1990 it became apparent that rainwater was a penetrating the east gable of the garage. The defender was requested to carry out remedial work. By letters dated 6 January and 4 March 1992 the pursuers and the defender entered into a contract for the fitting of lead complete with upstand and harling for the sum of £2054. 35. On 8 July 1992 it was agreed that further work should be done at the cost of £684. 50, plus VAT. These further contracts were referred to as the second and third contracts. Thereafter there were continuing problems with the penetration of water. The parties were in disagreement as to the cause or causes. [3] In due course, following meetings in November 1994, it was agreed between the pursuers and the defender that they should refer all disputes arising out of their contracts to Mr Russell Parker RIBA ARIAS as a man of skill. For this purpose they entered into a joint submission dated 5 and 14 December 1994. In terms of clause (NINTH) they sought his opinion on the following matters:"1. What is the cause of the water ingress at the garage?
2. What remedial action is required to remedy the problem of water ingress to the garage?
3. (a) Has the garage been constructed in accordance with the Building Contract?
(b) If not, in what way does the work fail to comply with the said Building Contract?
(c) Who is at fault under the terms of the said Building Contract for such failure to comply?
4. (a) Has the garage been constructed in accordance with the Architect's plan?
(b) If so, are the plans themselves in any way incorrect or faulty?"
Clause (TENTH) added the following matters:
"If the water ingress is not attributable to the blockwork which has been built into the garage, can the Arbiter provide his opinion on the following:-
1. Does the blockwork which has been used in the building of the garage conform to the specification and architect's drawing and the contract? If not, is it cheaper and by how much than that which was provided for in the said Building Contract?
2. Is the blockwork which has been used sufficient for the purpose to which it has been put?
3. Are there likely to be any long term problems with this blockwork?"
"The problem of water ingress appears to relate to 2 main design features: the first is the design of the roof/wallhead, where, with the copes exposed, they act as 'conduits' concentrating the flow of rainwater down onto the corners of the upper walls, and with the gusting of the wind around the building, this concentration of rainfall is blown against the walls which then become saturated. The second factor is the detailed design and/or execution of the wallhead itself, which is well-known to be a difficult detail to execute and can often lead to serious water ingress problems".
In further explaining the cause of the water ingress he stated (at page 11):
"I believe that the ingress is caused by wind driven rain 'pushing' water through the blocks walling i.e. through the render, the blockwork and the mortar joints. Also both the originally executed wallhead detail and its replacement are 'suspect' and water ingress is also occurring at the junction of wallhead and roof".
At page 16, following discussion of the blockwork, he stated:
"It is therefore my opinion that one important factor in the problems of water ingress at this building is the substitution of hollow concrete blocks rather than the originally specified solid blocks".
Also on page 16 he stated:
"In conclusion, I believe sufficient evidence exists with regards the use of hollow blocks to show that this substitution could be a basic cause of the water ingress. Also, that certainly the old, and probably the revised wallhead detail, is a second serious defect and another cause of water ingress. Whether the mortar & render mixes and workmanship are also contributory causes, this could only be established by careful laboratory analysis."
As regards the required remedial action, he stated (also on page 11) that ideally the garage should be rebuilt, using the originally specified block walling, the correct mortar mix and render, and with a more carefully detailed wallhead/roof junction at the gables. He also put forward two other approaches as alternatives to the first solution.
[7] On page 12, in answer to the question whether the garage had been built in accordance with the building contract, Mr Parker stated that while the drawing and the bills of quantities had called for the walling to be of 215mm dense concrete blocks, 215mm hollow blocks had been substituted. The external render mix was weaker than was required in order to satisfy the appropriate standard. No analysis was made of the mortar mix which was used. No lead flashing had been provided at the junction of the wallhead and the roof. Although the defender had provided a lead flashing as remedial work, this detail was " suspect" and could still be a source of water ingress. [8] Mr Parker also stated (on pages 12 -13) that the change in the specification of the blockwork was made by the defender without this being formally confirmed by either party. The responsibility for incorrect mixes for the render and the mortar would lie with the defender alone. As regards the wallhead detail, the defender could/should have requested additional information. However, the architect should have seen that this important detail was not built correctly and should have condemned the work. As regards the replacement wallhead detail, the architect should not have agreed that the pursuers pay extra money for the change, and should have ensured that the new detail was in every possible respect watertight, and properly designed and executed. Mr Parker further stated (on page 17) that, in the absence of written instructions from the architect or a letter from the defender confirming an agreed change to details or to specification, it must be concluded that the defender did not fulfil his obligations under the contract, and accordingly was liable to rectify the defects. He went on to say that while primary responsibility under the contract must lie with the defender, the architect could not escape some shared responsibility for the resultant building defects. [9] Following the issue of Mr Parker's report the defender disputed that he was under a duty to carry out remedial work. This led to the pursuers raising the action later in 1995. In reliance on Mr Parker's report they claimed that the defender was in breach of contract in a number of respects, and sought, inter alia, an order that he demolish the garage and rebuild it in accordance with the terms of the building contract, which failing a decree for payment of the sum of £95,000 by way of damages. It should be added that the pursuers convened as second and third defenders employees of the architect which had gone into liquidation. However, on 20 March 2002 they were by agreement assoilzied. In the meantime, following the pursuers' enrolment of a motion for summary decree, the action was sisted on 9 September 1996. Thereafter, at his expense, the defender carried out remedial work during three periods in 1997 in unsuccessful attempts to end the water penetration. Finally, work carried out by him in April 1998, coupled with certain of the work which had already been done, proved sufficient to bring the problem of water ingress to an end. [10] In these circumstances it was clear to the pursuers that it was no longer necessary for them to pursue the action. They accordingly moved the sheriff to refuse the craves of the initial writ and to award them the expenses of the action against the defender. The sheriff granted that motion, against which the defender has appealed to this court. [11] For the pursuers Mr Beynon did not dispute that findings which Mr Parker might have made could have been used to support or to resist a claim for expenses. It was within the scope of his remit to find the defender liable to carry out work. However, his report did not provide clear findings determining that the defender was in breach of contract or that such breach caused or brought about the penetration of water. Mr Beynon submitted that Mr Parker had merely given possible causes. At page 11 he stated "I believe...". His primary solution was introduced by the word "Ideally...". His answers in regard to remedial action and the building contract gave no clear basis for the pursuers' claim. While he expressed the opinion at page 16 that the substitution of hollow blocks was an important factor, he did not go so far as to say that the change was responsible for what happened. There was no finding there would have been no water penetration if the change had not been made. The parties had sought a reasoned report, but the treatment of the whole remit was superficial. In these circumstances the sheriff's decision on expenses was in error. Liability in expenses could not be determined without a proof. [12] The question for expenses was one for the sheriff in the exercise of his discretion. This court would not be justified in interfering unless it was satisfied that he was not entitled to make the determination which he did. He required to consider whether the pursuers were justified in raising the action against the defender. We should add it has not been suggested that there was any separate question as to whether they were justified in continuing the action to the point at which they sought its disposal. We consider that Mr Parker's report provided a satisfactory foundation for the action at least in so far as he held that the wallhead detail and the substitution of the hollow block work were factors which led to the penetration of water and for which the defender had a responsibility. If there were other contributory factors or if the architect was also responsible, this would not affect the responsibility of the defender to the pursuers, who were themselves without blame. It is also clear that if the pursuers had not raised the action when they did, the defender would have taken no steps to carry out remedial work and the pursuers' claim against him would have prescribed. In the circumstances we are satisfied that the sheriff was entitled to award the expenses of the action to the pursuers. [13] The remaining issue in this appeal relates to the defender's counterclaim in which he sought payment of (i) the retention sum; and (ii) the sums payable under the second and third contracts, to which we referred earlier in this opinion. The defender invited the sheriff to grant decree in his favour. However, the sheriff upheld the pursuers' first and second pleas-in-law relating to the counterclaim and dismissed it, finding the defender liable to the pursuers in the expenses occasioned by the counterclaim. As regards the retention, the sheriff considered that the defender could not demand payment in the absence of a final certificate. Moreover, he took the view that the counterclaim was irrelevant in that it failed to take into account the determination of Mr Parker, whose report provided the basis for a final accounting. As regards the second and third contracts, it appears that the sheriff took the view that no sum was due by the pursuers in respect that on the basis of Mr Parker's report, which could not be ignored, the defender was liable to rectify the defects. [14] We do not disagree with the view that the defender had no right under the principal contract to immediate payment. However, we consider that the sheriff went too far in deciding that the counterclaim was irrelevant. While there may be a problem in regard to the obtaining of a final certificate, it appears that the defender has a stateable case for claiming decree for the retention sum. As regards the remaining sums sued for in the counterclaim, it has to be borne in mind that the second and third contracts were entirely separate from the contract for the building of the garage. The defender is prima facie entitled to payment. This is, however, subject to any relevant defence. In our view Mr Parker's report did not disentitle the defender from such payment. The fact that he stated at page 12 that he was surprised that the pursuers were charged for this extra work cannot, of itself, affect the defender's legal right to payment of sums due under separate contracts. [15] For these reasons we allow the defender's appeal against the interlocutor of the sheriff in so far as it was concerned with the counterclaim, but quoad ultra we adhere to the sheriff's interlocutor. We will remit to the sheriff to proceeds as accords. [16] It is, of course, singularly unfortunate that, after so much time has been spent in discussion of the parties' respective rights and obligations, these comparatively small claims still remain outstanding. We trust that parties will take the opportunity to consider whether these matters can be sensibly resolved, so as to avoid the need for yet further expense.