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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Toner v. Kean Construction (Scotland) Ltd [2005] ScotCS CSOH_65 (18 May 2005)
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Cite as: [2005] CSOH 65, [2005] ScotCS CSOH_65
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Toner v. Kean Construction (Scotland) Ltd [2005] ScotCS CSOH_65 (18 May 2005)
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OUTER HOUSE, COURT OF SESSION [2005] CSOH 65 |
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OPINION OF LADY DORRIAN in the cause DONAL TONER Pursuer; against KEAN CONSTRUCTION (SCOTLAND) LIMITED Defender:
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Pursuer: Jamieson, MacRoberts
Defenders: Henderson, Lindsays, W.S.
18 May 2005
Introduction
[1] The pursuer is an architect who provided architectural services to the defenders in connection with a project for office units at Glebe Street, East Kilbride for which the defenders were the developers. The pursuer claims he was only partially paid for the services which he rendered and in this action is suing for the remainder. The present action was raised in March 1999 in Hamilton Sheriff Court and was sisted there in July 2000 for the preparation of an expert report for the pursuer. In July 2002 the action was remitted to the Court of Session. The amendment process which was under consideration when the case called before me began with a Minute of Amendment for the pursuer in August 2003 with answers in September 2003. Thereafter, both parties adjusted and the last adjustment took place in February 2005.Motion
[2] The pursuer's motion on 29 April 2005 was to allow the closed record to be opened up and amended in terms of the Minute and Answers as adjusted and of new to close the record. The defenders opposed this motion on the grounds that the amendment introduced a fundamental alteration to the basis of the case, that it was essentially a new case altogether and had thus prescribed. The pursuer avers that he provided architectural services between July 1995 and December 1996. Any new grounds of action would have prescribed by the end of 2001. The Amendment containing a new ground of action, the motion should be refused.Pleadings
[3] The pleadings for both parties, even taking into account the proposed amendment, could not be described as a model of clarity. In the action as originally framed the pursuer averred as follows: "The pursuer is entitled to be paid for the professional services provided by him. No fee scheme was ever agreed between the parties. The Pursuer is accordingly entitled to be paid on a fair and reasonable basis." The pursuer claimed to be entitled to fees of £23,335 plus VAT which sum appears to be based on an estimate of what is fair and reasonable in the circumstances. Factors which the pursuer claims should be taken into account in assessing what is fair and reasonable are said to include the RIBA/RIAS scale fee. In respect of the latter the averments on record are that:"The RIBA/RIAS issue a scale of fees which identifies a reasonable fee having regard to the nature, extent and value of the project in question. The pursuer would intend using said RIBA/RIAS scale as a further tool in arriving at a fair and reasonable fee. In the event of the RIBA/RIAS scale fee being used then at least 35% of the total fee (whatever that would be) would fall to be paid. They cannot do so until such time as the defenders identify the value of the contract."
The defenders admitted that certain architectural services were provided by the pursuer, that no basis of remuneration was ever agreed and that the pursuer was entitled to be paid a reasonable remuneration.
[4] The relevant pleas in law on record for the pursuer are:"(2) The Defenders being due and resting owing to the pursuer in the sum sued for decree should be granted as craved.
(3) The pursuer having provided architectural services on the instruction of the Defenders is entitled to remuneration therefor on a fair and reasonable basis.
(4) The sum sued for representing the balance of a fair and reasonable fee in respect of all of the services carried out, decree should be granted as craved."
The proposed amendment now seeks to identify the fee solely by reference to the RIBA/RIAS scale of fees. The Minute of Amendment avers (a) that the pursuer had originally been engaged on the project by the defenders' predecessors in title, which predecessor had acknowledged that the RIBA Conditions of Engagement were to apply; (b) that at the time of the pursuer's appointment by the defenders, discussions took place about proceeding to building warrant stage; (c) that no other discussions took place in respect of the appointment and that accordingly the normal custom and trade provisions applied, namely the conditions contained in the RIBA/RIAS Architects Appointment 1982; (d) that by instructing him to carry out work to building warrant stage the defenders knew the pursuer would be working up to Stage E: Detail design in terms described in the RIBA/RIAS Architects Appointment. The pursuer goes on to aver how the fee claimed has been calculated according to the RIBA/RIAS Architects Appointment 1982. The pleas in law referred to above are deleted and new pleas in law are proposed as follows:
"(2) The pursuer having provided architectural services on the instruction of the defenders is entitled to be remunerated therefor.
(3) The sum sued for representing the balance of the fees calculated by reference to the RIBA/RIAS Architects Appointment 1982 in respect of work carried out by the pursuer on the instruction of the defender decree should be pronounced as concluded for".
Submissions
[5] The pursuer argued that notice had been given in the pleadings as originally drafted that the RIBA/RIAS scale would be used as a method of calculating the fees due. All that the amendment was doing was to restrict the case to this one method of calculation. [6] For the defenders it was argued that the amendment fundamentally changes the whole basis of the case and that the amendment is accordingly too late. Reference was made to Classic House Developments Limited v G D Lodge & Partners and Others, Lord Macfadyen, 30 January 1998, unreported.Decision
[7] In my view the amendment does not fundamentally change the basis of the case. The case remains what it always was, namely a claim for payment for professional services carried out by the pursuer on the instructions of the defenders. The original pleadings state that no fee agreement was reached but aver that the RIBA/RIAS scale is a tool by which the appropriate fee could be calculated. The amendment does not suggest that the parties in fact reached agreement that the instructions proceeded on the basis of the RIBA/RIAS scale. On the contrary a proper reading of the proposed amendment indicates that no fee agreement was entered into and that in such circumstances the custom of the trade would apply the RIBA/RIAS scale to the work undertaken. In other words that this scale is the method by which the appropriate fees are to be calculated. [8] The fact that the pursuer's claim is restated in this way does not alter its fundamental nature and accordingly I propose to allow the record to be amended in terms of the Minute of Amendment and Answers. I will accede to the defenders request to allow 28 days for a further Note of Arguments and otherwise to continue the case on the procedure roll.