Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2010] CSOH 145
CA177/09	OPINION OF LORD MENZIES in the cause PELAGIC FREEZING (SCOTLAND) LIMITED Pursuers; against (FIRST) LOVIE CONSTRUCTION LIMITED and (SECOND) GRONTMIJ GROUP LIMITED Defenders: ___________

Pursuers: S. Smith; MacRoberts LLP

First Defenders: Duncan; A & W M Urquhart

Second Defenders: Dunlop; Dundas & Wilson C.S.

28 October 2010

Introduction

[1] In about 2001 the pursuers entered into a contract with the first defenders in terms of which the first defenders agreed to carry out and complete the conversion and extension of an existing warehouse in Peterhead into a fish processing complex with ancillary offices and amenities. The first defenders' contractual responsibilities are averred to have included the completion of the design of the cladding system of the new building. Also in about 2001 the second defenders (who were known as Carl Bro Group Limited at that time) were appointed to provide services in respect of the design, procurement, project management and planning supervision of the contract works. The second defenders agreed to provide the services of architect, quantity surveyor and planning supervisor under the building contract. The details of the parties' contractual arrangements are not relevant for the purposes of this Opinion.

[2] Partial demolition of the building previously on the site began in 2001, and the pursuers began processing fish in the new building on about 10 July 2002. A certificate of practical completion was issued on 8 October 2002, which was backdated to 2 September 2002. Since July 2002 the pursuers have continued to operate their fish processing business from the premises.

[3] There have been problems with water ingress through the roof of the premises. The chronology and causation of these problems were in large part the matters in dispute before me, and I turn to them more fully below. On 3 February 2009 the pursuers raised the present action against both the first and second defenders, seeking damages from them as a result of their alleged breach of contract and fault and negligence. Each of the defenders aver that any right of action against them has been extinguished by the short negative prescription. In reply, the pursuers deny that the defenders' obligation to make reparation has been extinguished by prescription. Furthermore, they rely on the provisions of Sections 11(3) and 6(4) of the Prescription and Limitation (Scotland) Act 1973 as amended.

[4] Parties were allowed a preliminary proof on the question of prescription. At this proof, the evidence of two witnesses was led for the pursuers; no evidence was led for either of the defenders. Thereafter each of the parties helpfully lodged very full written outline submissions (numbers 35, 36 and 37 of process). I do not seek to repeat these written submissions in the course of this Opinion, but I have taken account of everything submitted, whether in writing or orally, on behalf of the parties. Parties also lodged a joint minute of admissions (number 32 of process).

The evidence
[5] Mr David Robert Fasken was aged 57 and had been employed as general manager of the pursuers since 1 November 2001. He became a director of the pursuers on 19 November 2008. He was responsible for everything to do with the day to day running of the company, from production matters, employing staff, overseeing accounting and dealing with customers. He reported directly to the board of the company. He was employed with these responsibilities during and after the construction phase of the premises. Partial demolition of the previous building began in mid 2001, but the concrete floor, steel work and steel purlins were used for the construction of the new premises. The pursuers' aim was to begin operating their fish processing business in time for the Scottish herring season, which began at about the end of June or early July 2002. They began their operations on 10 July 2002, and the date of practical completion of the works was 2 September 2002. Mr Fasken was aware of one or two problems with leaks in the roof before then, but these did not concern him unduly because he was assured that these were part of the normal construction of the building. He relied on the technical expertise of the second defenders to oversee the project, and the first defenders to carry it out. He had so many other manners on his mind in setting up the business that he did not involve himself to any great extent with the construction process. Although there was correspondence between the second defenders and the first defenders and their roofing sub-contactors in the period between January and June 2002 in which there was discussion about leaks in the roof of the premises, much of the correspondence and minutes of meetings (eg. numbers 2, 3, 5, 6 and 12 of the joint bundle) was not copied to Mr Fasken and he was not aware of it. There were many other items in which roofing problems were discussed and which were copied to him, but which did not cause him any concern because he regarded them as amounting to no more than the normal defects which were to be expected in a building project of this nature, and which he relied on the second defenders (in conjunction with the first defenders) to deal with and resolve. For example, at a site meeting on 16 April 2002 at which the pursuers were represented, there was discussion about sheeting faults which had caused recent roof leaks. Mr Fasken understood this to relate to a batch of about 15 roof sheets (out of a total of about 600) which were not thick enough and not to specification. He left this to the second defenders to deal with, and understood that they were doing so. He was given to believe that the manufacturers of the sheeting, Rigidal Industries Limited ("Rigidal") had provided a report on this problem which had resolved the issue, although he did not see this report. It was always of great importance to the pursuers that they would receive a 25 year warranty from Rigidal relating to the roof sheeting materials. At a meeting on 28 May 2002 at which Mr Fasken was in attendance the second defenders indicated that they were satisfied with Rigidal's report and warranty.

[6] Although there were other roof leaks discussed in the correspondence (for example in the fax from the second defenders to the first defenders dated 7 June 2002) Mr Fasken had no recollection of leaks in the roof void at that time, and in any event it was still during the construction phase and before practical completion.

[7] However, after practical completion he was aware of roof leaks. In the snagging list as at 31 October 2002 items 29 and 30 referred to more leaks having become apparent in the recent two weeks and that there was a roof leak in the plant room. Mr Fasken was aware of these, but they were minor problems, principally in the office area where there were small trickles of water during heavy rain. The leak in the plant room was very minor and localised around the sealant of a roof fan.

[8] Mr Fasken was shown number 19 in the joint bundle, a fax from Mr Johnstone of the second defenders to Mr Lovie of the first defenders in which Mr Johnstone queried whether the correct numbers of fixings had been used and at the correct spacing for Rigidal's specification. Mr Fasken observed that this became a regular theme from this point on, and the pursuers were constantly told that the problem with the roof was the fixings. This, and the problem with the ridge capping of the roof identified in the snagging list updated at 27 November 2002 which was copied to him was within the defects liability period and he assumed that it was being dealt with by the second defenders. His understanding was that all outstanding problems regarding leaks in the roof had finally been dealt with by about early 2003, or mid 2003 at the latest. When he suggested that roof leaks should be discussed at the meeting on 11 February 2003, he was concerned only with leaks in the office area which had caused staining, and he wished the first defenders to replace ceiling panels and repaint at no cost to the pursuers; he did not remember any leaks elsewhere in the premises at that time. In particular he did not see the fax from Mr Johnstone to Mr Lovie of the following day (number 32 in the joint bundle) in which it is stated that "our client and ourselves have no confidence in the integrity of the roofs and cannot accept the incidence of water ingress". Mr Fasken did not remember questioning the integrity of the roof. Although in his fax dated 27 February 2003 to Mr Lovie Mr Johnstone again raised the outstanding issues with the roof sheeting which he considered to be a defect, this was not raised with Mr Fasken. In the minutes of the meeting of 19 March 2003 (number 36 of the joint bundle) it was reported that there had been no roof leaks since before Christmas due to the ridge cap damage, and Mr Fasken understood the roof to be free of leaks and issues regarding faulty sheeting material to be closed. He thought all the problems with the roof had been resolved; although there was an issue raised in August 2003 regarding roof leaks adjacent to two vents in the lower level roof over the plant room, these were very minor and localised and did not cause him concern. At the meeting on 8 October 2003 which Mr Fasken attended, both the first and second defenders confirmed that (apart from the very minor plant room leaks) all other issues relating to roof sheeting and roof leaks were resolved.

[9] On the night of 31 December 2003/1 January 2004 there was a bad storm with very high winds in Peterhead. When Mr Fasken and other employees of the pursuers returned to work after the festive period on 5 January 2004 they found that 3-5 roof sheets towards the western corner of the premises had been pulled off by the wind, allowing water ingress in that area. The pursuers notified both defenders and also their insurers, and inspections of the roof were carried on out behalf of the first defenders, the second defenders and the loss adjustors for the insurers.

[10] Mr Fasken was shown a memo prepared by Mr Johnstone of the second defenders dated 6 January 2004 (number 44 of the joint bundle). This was not copied to him and he did not see it at that time. The last two paragraphs on the first page of that memo were in the following terms:

"PF have expressed great concern over this incident especially since there has been a history of sheeting problems including over-cladding of areas; previous hip flashing damage and renewal; renewal of fixings and many instances of roof leaks scattered throughout the roof areas and throughout the entire construction and defect periods.

Further PF consider the only solution may be to re-roof completely. PF will not want to fund this since they contend the situation is not of their making."

Mr Fasken did not remember any discussions with Mr Johnstone at this time about re-roofing completely, but he observed that 5 January 2004 was the pursuers' busiest day for processing mackerel, and all his energies were focussed on processing the enormous volume of fish. He was under incredible pressure and he may have "ranted" at Mr Johnstone. He had not seen Mr Johnstone's fax dated 21 January 2004 (number 48 of the joint bundle), but he considered that it was suspicious that Discovery (who were the first defenders' roofing sub-contractors) were fitting extra fixings shortly after their arrival on site, and before the results of any inspection had been received.

[11] Because the pursuers regarded the problems with the roof at this stage to be so serious, they instructed an independent report on the cause of the roof damage from Arch Henderson. The pursuers received the second defenders' preliminary report on storm damage to the roof (number 52 of the joint bundle) on about 13 or 14 February 2004. This preliminary report was inconclusive as to the cause of the damage - four possible causes were identified, being extreme weather conditions (weather conditions beyond design limits), design inadequacies, material defects and installation defects. The report regarded extreme local weather conditions to be unlikely but they could not be ruled out at that stage. Rigidal had confirmed the adequacy of the proposed fixings. The report stated that the storm damage may or may not be connected to the remedial works necessitated by the batch of below specification roof sheeting, and the roof cladding fixings appeared to have been installed generally in accordance with the drawings. The report concluded that further investigation was required. The pursuers were accordingly unclear as to the causes of the damage, but Mr Fasken observed that it all seemed to come back to the fixings.

[12] Mr Fasken remembered receiving two reports from Arch Henderson. He was shown the preliminary report dated 27 January 2004, but he could not specifically remember receiving this. He did remember receiving the final report from Arch Henderson (number 53 of the joint bundle), which must have been received after 10 February 2004. The conclusion of this report was that wind loads on the day the damage occurred were not excessive and less than design values, and that Arch Henderson must conclude that the fixings installed were inadequate. He observed that this was the tenor of all the findings regarding the 2004 storm damage - the problem always came back to the fixings. He understood that the number, size and spacing of fixings was something which should have been done as part of the design of the roof. However, nobody came out with a definitive reason for the storm damage, which was what the pursuers were interested in. This remained the position throughout most of 2004. As at 27 January 2004 the pursuers were only aware of a possible link between fixings and the localised problem of the hole in the roof arising from storm damage.

[13] Mr Fasken reported the problems of storm damage to the directors of the pursuers, who were concerned about the hole in the roof at that time of year and they wanted to be reassured that the second defenders were putting in hand remedial measures. This was why a meeting was convened on 23 February 2004 at which all four directors were present, in addition to Mr Fasken who was not at that time a director. Mr Johnstone took informal notes of that meeting, which were number 54 of the joint bundle. Mr Fasken had given the directors a briefing note a few days in advance of this meeting, and he was pretty sure that he would have copied all the reports to the directors, although he could not remember when he did so. At that meeting on 23 February 2004 Mr Johnstone told the pursuers that the roof damage was caused by a latent defect, not adverse weather, and was therefore a matter covered by warranty. Throughout the period until 2008 the second defenders continued to assure the pursuers that they were covered by the Rigidal warranty, and that the question of numbers and spacing of fixings were matters which could be remedied and were being remedied. On 24 February 2004, the day after this meeting, Mr Fasken wrote (number 55 of the joint bundle) to the loss adjustors telling them that the second defenders had identified the issue of fixings as a latent detect which they would highlight to the first defenders. The second defenders wrote to the first defenders on 5 March 2004 (number 57 of the joint bundle) outlining the deficiencies in roof cladding fixing, and this letter was copied to Mr Fasken. There was no suggestion that the cause of the damage which occurred in early 2004 was due to any lack of quality in the roof panels or any material deficiency of that sort. There was no suggestion that the problem might have been caused by a thin outer ply surface, nor was there anything in the schedule of apparent deficiencies attached to number 57 to suggest a lack of quality in the cladding sheets. The pursuers were satisfied that the second defenders were dealing with the problem as part of the administration of the contract; the letter from Discovery to the first defenders dated 29 March 2004 (number 59 of the joint bundle) was not shown to the pursuers.

[14] The second defenders' letter dated 5 April 2004 to the first defenders (number 61 of the joint bundle) was copied to the pursuers, and required the first defenders to calculate the wind loads on the roof and thereafter determine the type, number and spacing of fixings; this was also the subject of the second defenders' letter dated 10 June 2004 which was also copied to the pursuers. Mr Fasken's e-mail dated 24 June 2004 to Mr Johnstone (number 63 of the joint bundle) concerned small leaks in the office area of the premises, but the second e-mail of that date (number 64 of the joint bundle) forwarded a summary of multiple leaks in various parts of the roof. As Mr Fasken put it in evidence, after heavy rain in June 2004 suddenly there was an increase in the number of roof leaks. Further detail was given in Mr Fasken's letter to the second defenders dated 30 June 2004, in which he observed that the latest roof leaks were sufficient proof in themselves that the building is (and never has been) "wind and watertight", and that some of the leaks (eg. the de-stacker area) go back to the time of the original construction. On 22 July 2004 Mr Fasken wrote to Mr Johnstone regarding "the major issue of the storm damage and substandard roof which we classify as a latent defect". These matters were discussed at a meeting between the parties on 29 July 2004. Mr Fasken came under increasing pressure from the directors of the pursuers to see that progress with resolving the roof leaks was made; on 5 October 2004 Mr Martin Croan, one of the directors of the pursuers, e-mailed Mr Fasken stating inter alia:

"If there is a systemic problem with PFSL's roof, as we suspect, then those responsible must face up to it, recognise the nature of the problem, make good their original work and salvage their reputations."

The term "a systemic problem" was Mr Croan's term, not Mr Fasken's.

[15] In June 2005 a new problem was discovered in the roof. Mr Johnstone of the second defenders copied to Mr Fasken an e-mail dated 13 June 2005 to the first defenders (number 80 of the joint bundle) in which, for the first time, corrosion was noted in the roof panels. This was not related to the issue of thickness which had required fifteen sheets to be replaced earlier; it was the start of the problem which led to the wholesale failure of the roof. Corroded roofing sheets were sent to Rigidal for testing, and there was correspondence between the pursuers and the second defenders about this during July and August 2005, although the second defenders reassured Mr Fasken that Rigidal's warranty would still stand, so at this time Mr Fasken had no concerns. More leaks became apparent whenever there was heavy rain in the period from October 2005 to May 2006, but on 28 June 2006 the second defenders issued a certificate of making good defects for the works. On the day before this certificate was issued there was a meeting between the two parties at which Mr Johnstone of the second defenders stated that any problems with the sheeting material would be directed to Rigidal against their long term warranty.

[16] The leaks continued, and Mr Johnstone of the second defenders observed on 19 July 2006 (number 100 of the joint bundle) that he was very concerned and that the last downpour revealed to him backward progress in getting the building watertight. In early August 2006 Mr Fasken noted four major leaks, three above the de-stacker and one above the canteen, all as before but getting worse.

[17] In about November 2006 Mr Fasken became ill, and did not return to work until about January 2008. By that time he noted that the roof problem was not getting any better. The boardroom was affected with one roof panel disintegrated and others soiled, and water on the floor, and water was coming down into the canteen and had "shorted" electrical equipment. There was water everywhere in the roof void. By April 2008 the second defenders had inspected the roof and taken a series of photographs showing defects with fixings and roof sheeting panels (number 104 of the joint bindle). There were very evident pools of water appearing on the internal cold store roof. There were serious roof leaks to the east side of the building, and corrosion around the fixings. Because the pursuers themselves had not had access to the roof, Mr Fasken stated that these photographs were the first time that they had seen the extent of the corrosion problem with the roof. On 23 July 2008 Mr Johnstone of the second defenders wrote to the first defenders (number 106 of the joint bundle) to inform them that in their opinion there was a latent defect associated with the roof sheeting, and that the main issue appeared to be extensive corrosion of the top sheeting giving rise to concerns on life expectancy. On 12 August 2008 Rigidal Systems Limited e-mailed the first and second defenders stating that the materials used at the premises were supplied by a former sister company, Rigidal Industries Limited, which ceased to trade in 2002, indicating that Rigidal Systems Limited had no liability for products supplied by the former Rigidal Industries Limited. Until this moment, Mr Johnstone of the second defenders and Mr Lovie of the first defenders had assured the pursuers that a valid warranty was in place, on which the pursuers could rely. On 13 August 2008 Mr Johnstone e-mailed Mr Fasken (number 111 of the joint bundle) indicating the view that the issue of which branch of Rigidal exists or does not was, to him, of no importance since the warranty was still valid under the contract conditions. However, by e-mail dated 25 August 2008 to Mr Fasken Mr Johnstone stated that:

"The stand that Rigidal have taken in respect of the supplying company now being defunct has taken this issue away from engineering into contract law in my opinion. This now goes beyond our expertise and we suggest that Lovie and/or Pelagic need to seek legal advice regarding the guarantees or warranties."

Until this time the pursuers had not taken legal advice on this matter, although they had considered doing so, because they understood that they were protected by the warranty. The existence of this warranty had an effect on their decision as to whether or not to raise any action against either of the defenders.

[18] In cross-examination for the first defenders Mr Fasken accepted that part of the pursuers' case related to inadequate materials, and part (including failure to provide adequate fixings) to failure in design. The case regarding inadequacy of material included averments of delamination of the lining panel and corrosion of the external skin, each of which was an instance of product failure.

[19] Although Mr Fasken attended some site meetings, he was not heavily involved during the construction phase of the new premises, and relied on the second defenders. In the period up to practical completion in September 2002, leaks in the roof were not a major issue for him and he assumed they were a construction teething problem which would be sorted out. He had trust in the first and second defenders. Thereafter, although roof leaks were included in lists of snagging items which were copied to him (eg. the fax from Mr Johnstone dated 1 November 2002, number 17 of the joint bundle, on the front page of which the words "roof leaks" were in Mr Fasken's handwriting) these were localised problems. On 26 November 2002 he was aware that some ridge capping had broken free, but this was localised and did not lead the pursuers to expect further wide scale damage to the roof. He was also aware that the second defenders considered that the damage was a defect rather than storm damage (number 22 of the joint bundle) but this was within the defects liability period and did not cause him undue concern. He was aware of further leaks and water ingress to the premises in December 2002 and January 2003, but he described these as "all minor leaks, not buckets" and assumed that they were all being dealt with by the first and second defenders. He pointed out that his attention was focused on freezing fish, and he was not aware of there being any serious problem at this time - all the leaks were within the roof void and the upstairs office area, and were not reaching the main factory building. He accepted that at the site meeting of 19 March 2003 it was stated that "the current level of weather protection and reliability of the roof sheeting is not acceptable to the client" and that discussion occurred as to whether the roof sheet and capping fixings could be of the incorrect type. The roof was one of the matters which deserved special attention.

[20] However, by the spring of 2003 and for the rest of that year, apart from one localised leak around a fan in the plant room, there were no problems with leaks in the roof. The next major event was the storm damage which was noticed on 5 January 2004, but Mr Fasken pointed out that this was small in size in relation to the whole roof - it involved four or five sheets out of a total of about 600. He was referred to the second defenders' preliminary report which he received on 13 or 14 February 2004 (number 52 of the joint bundle). Under reference to the plan which formed Figure 2 at the end of that report, he did remember some water on the cold store ceiling, but his recollection was that the worst affected area was area 10 as shown on the photograph (number 116 of the joint bundle), and not the area of water ponding shown in Figure 2 to number 52. He accepted that the area of ponding shown in Figure 2 of number 52 was at the other side of the roof from the storm damage, and at the far end of the premises, and not directly exposed to the prevailing wind. He accepted that ponding on the cold store roof became a matter of serious concern later, because there was a risk of water entering the roof panel points, which might cause ice to form and bring the cold store roof down. There were some puddles on the cold store roof at this time, but not to the extent that was seen in later years.

[21] Mr Fasken was referred to Mr Johnstone's memo dated 6 January 2004 (number 44 of the joint bundle) and observed that if he had told Mr Johnstone that the only solution may be to re-roof completely, this was not a considered remark - Mr Fasken was not an expert in roofs, and he was under great pressure and processing hundreds of tonnes of fish at the time. He instructed an independent specialist inspection of the roof from Arch Henderson because he wanted to know why the storm damage had occurred. He asked Arch Henderson to investigate the storm damage, but did not recall instructing them to investigate the "problem history" of the roof. He always trusted the second defenders to get matters right. Arch Henderson inspected the roof on 20 January 2004, and their report was faxed to him on 27 January 2004. It was put to him that on receipt of this report it must have occurred to him that there had been a failure to provide a wind and watertight roof, but he denied this and stated that the pursuers stuck with the second defenders for many years after this and he did not believe at that time that there was any danger of a wholesale failure of the roof. The fact that Arch Henderson had contacted Rigidal who confirmed that they no longer manufactured the sheeting used did not cause any alarm bells to ring for Mr Fasken regarding the warranty. Although the report did not come to any conclusion, it was not correct to say that the roof had failed, and the report did not state this. As far as Mr Fasken was concerned it was down to fixings, which were indicative of poor workmanship and failure to conform with specification, but he had to await the conclusions of the investigations. He accepted that the preliminary Arch Henderson report which he received on 27 January 2004 gave indications of failures beyond the storm damage and went on to consider widespread problems; he could not explain why there was no mention of this preliminary report in the pursuers' pleadings.

[22] The second defenders' preliminary report (number 52 of the joint bundle) did not provide any answers although it underlined that there were serious problems. Although paragraph 4.4.1 of that report questioned whether the storm damage may or may not be connected to the batch of roof cladding panels identified by Rigidal as having been manufactured with a thinner outer sheet than required, the pursuers still trusted the second defenders. Thereafter there were some leaks in the roof, but in the period from October 2004 until about April 2005 there were no significant further problems with leaks in the roof.

[23] The e-mail from Mr Johnstone to Mr Fasken dated 13 June 2005 and relating to corrosion in roofing sheets was a new problem, and this was the first that Mr Fasken had heard of it. There was no further mention of corrosion until the review meeting of 27 June 2006 (number 99 of the joint bundle) in which Mr Johnstone minuted that "any problems with the sheeting material will be directed to Rigidal against their long term warranties". Mr Fasken accepted that the real issue for the pursuers is that Rigidal's warranty ultimately has proved to be worthless.

[24] Under cross-examination for the second defenders Mr Fasken agreed that he was aware of various problems with the roof during construction, but he considered that these had been sorted by the middle of 2003. The damage caused by the Hogmanay storm and discovered in January 2004 was of a different magnitude, and there were widespread leaks across the roof following this. He accepted that the second defenders' preliminary report of 12 February 2004 indicated various instances of water ingress, and he agreed that this was widespread, but the water was not flooding into the building. It was an exacerbation, but not a major exacerbation. Although the dampness on the blast freezer was a source of concern in the long term, he did not relate the storm damage to the earlier problems, and he put down the ingress of water shown in Figure 2 of the second defenders' report to the extreme weather conditions and not to any earlier problems. He reiterated that he was not a technical expert, the second defenders were managing on the pursuers' behalf, and the second defenders did not explain that this was a much wider problem. He relied on the second defenders' expertise. Although he received Arch Henderson's preliminary report on 27 January 2004 and the problems discussed included fixings and overlap, and these problems were implicated in the Hogmanay storm damage, various explanations were given and further investigations were required. His explanation for the action not having been raised before February 2009 was that the pursuers were relying on the Rigidal warranty, and if the warranty had been good this action would not have been raised. However, he accepted that the fixings were nothing to do with the warranty; these were latent defects as far as the pursuers were concerned. He agreed that problems with fixings still formed part of the basis of the pursuers' case in the present action, and in particular that insufficiency of fixings was part of the pursuers' case, but he stated that as far as he was concerned the real problem was corrosion. He accepted that inadequacy of fixings remained an integral part of the pursuers' case, and that the pursuers were well aware as at 27 January 2004 that there was a widespread problem with fixings across the roof. He also accepted that paragraph 1.5.1 of Mr Iain Fergusson's report (No 43 of Process) formed a central part of the pursuers' case.

[25] In re-examination Mr Fasken stated that he was aware that problems with fixings had been identified in both the Arch Henderson preliminary report and the second defenders' preliminary report, but he understood that this problem was being put right. This was still within the defects liability period, and there was no suggestion that the first and second defenders were unwilling or unable to carry out these works. He believed that the fixing issue in 2004 was put right, and the fixing issue identified in 2009 was a different point. He believed that the defects had been made good, and there was a certificate to that effect. He would not have accepted this if he had thought that there were any major problems with the roof. He understood the difference between a roof being not completely watertight and complete failure of the roof. A roof which had a few leaks does not require to be replaced. He never received advice from the first or second defenders that the roof needed to be replaced.

[26] Robert Patrick Duthie was aged 52 and had been managing director of Denholm Seafoods since October 2009. He had been a director of the pursuers since the company was formed. He had worked with David Fasken for 25 or 30 years and was in daily contact with him.

[27] He remembered various leaks and problems with fixings to the roof of the premises before practical completion in September 2002, but he was not involved himself in the detail of the project, and the pursuers had engaged professionals, namely the first and second defenders, to design and build the premises. There were various snagging issues, but this was not unexpected in the early stages of a new build contract such as this. There was continuous dialogue between the parties to complete the remedial works and finish the job.

[28] He remembered being told of the roof damage after the Hogmanay storm, in January 2004. His main concern was to get the roof repaired quickly, because the pursuers' business was seasonal and they were very busy in January and February. Mr Fasken was dealing with the matter on behalf of the pursuers. He remembered receiving the preliminary reports from Arch Henderson and the second defenders, but could not remember when he first saw these. He remembered attending a meeting of the directors of the pursuers on 23 February 2004 at which the matter was discussed; no conclusion had been reached at that stage as to the exact reason for the damage to the roof, although obviously insufficiency of roof fixings was recognised as one of the issues which caused the roof damage. The pursuers were confident from day one that everything would be covered by warranty, and they were assured by the second defenders that this was the case until 2008. There was no discussion in January or February 2004 about corrosion to roof panels: He could not recall any mention of corrosion until May 2005 when the second defenders told the pursuers that Rigidal had had some problems with panels and aluminium made in Norway. He assumed that this was resolved by the time of the certificate of making good defects. The pursuers were led to believe that all was well at the time of the issue of that certificate, and they were assured that the warranty remained in place. If they had been told that the warranty could not be relied on, this would have been a serious matter for the pursuers and they would have had to take legal advice.

[29] The pursuers have suffered continuous leaks of water through the roof in the building (Mr Duthie used the boardroom frequently and noticed that there were always leaks there), but they always considered these to be localised and not a major problem. The pursuers themselves did not have access to the roof, and Mr Duthie himself never examined it. The pursuers were not aware of any corrosion problems as at 2006, but by 2008 it had become clear that corrosion was a major problem and that the whole roof might be in danger. It was not until Mr Johnstone advised the pursuers that the Rigidal company which manufactured the roof sheets was no longer in existence and the present Rigidal company did not accept liability under the warranty that the pursuers realised that the warranty might be worthless.

[30] In cross-examination for the first defenders Mr Duthie agreed that Mr Fasken was really running the construction project from the client end, but after the storm damage in January 2004 the directors became more actively involved; they would support Mr Fasken if called on to do so, and in January 2004 they were in touch with him every day and there was ongoing discussion as to progress with the roof. Mr Duthie was shown Mr Johnstone's note dated 6 January 2004 (number 44 of the joint bundle), and he indicated that the last three paragraphs of that note certainly did not reflect his views at the time. They may have been comments made because of frustration, but Mr Duthie was certainly hoping that the roof would not need to be replaced, and he did not have a concern at that time that this might be necessary. With regard to Mr Johnstone's informal notes of the meeting with the directors of the pursuers on 23 February 2004 (number 54 of the joint bundle) he agreed that this meeting reflected the seriousness of the situation regarding the roof. At this point the pursuers decided that some sort of legal redress against the first or second defenders may have to be considered. He was asked whether it was the view of the pursuers that there was a systemic failure of the roof, and he replied that he would not use the word failure; there had been problems, but these were localised - at no time did the pursuers consider this to be the problem that it subsequently turned out to be. Under reference to Martin Croan's comment on 6 October 2004 (in number 73 of the joint bundle) "if there is a systemic problem with PFSL's roof, as we suspect ...", Mr Duthie stated that the pursuers were concerned about a continuing problem but they were not aware of any problems apart from the fixings - there was no question of corrosion in the roof at that time. Under reference to Mr Johnstone's e-mail dated 19 July 2006 (number 100 of the joint bundle) in which Mr Johnstone remarked that "the last downpour revealed to me backward progress in getting the building watertight", Mr Duthie observed that "it was ever present".

[31] In cross-examination for the second defenders, Mr Duthie agreed that the pursuers had continual problems with the roof, with fixings and leaks, and then the storm damage occurred. That was fixed, and then there were no other problems with the roof for a time. He could not remember thinking that the problems were so bad that the roof might need to be replaced. He was asked if this was a possibility in his mind in January 2004 and he denied this. It was put to him that it was a possibility which he hoped would not eventuate, and he agreed with this. He remembered that there were continuing problems with fixings, which were identified in both the preliminary and final reports from Arch Henderson. He recalled that fixings were always a big discussion point, and that they were implicated as an issue in the storm damage.

Submissions for the Pursuers
[32] Counsel for the pursuers moved me to repel the third plea-in-law for each of the defenders and to allow a proof before answer on the parties' pleadings at large. He submitted that both Mr Fasken and Mr Duthie were credible and reliable witnesses, doing their best to assist the court. The defenders led no evidence, so cannot complain if inferences most favourable to the pursuers are drawn from the evidence - Ross v Associated Portland Cement Manufacturers Ltd [1964] 1 WLR 768; AMN Group Ltd v Gilcomston North Ltd 2008 SLT 835.

[33] Counsel gave a helpful summary of the chronology of events, which I do not repeat but which is to be found at paragraphs [9] to [60] of his written submissions (number 35 of process).

[34] The onus of proving "prima facie" prescription under Section 11(1) of the Prescription and Limitation (Scotland) Act 1973 rests upon those who advanced the plea of prescription - BP Exploration Operating Co Ltd v Chevron Shipping Co 2001 SC(HL) 55; Strathclyde Regional Council v W A Fairhurst & Partners 1997 SLT 658. However, counsel accepted that once "prima facie" prescription had been established, the onus of proving lack of awareness for the purpose of Section 11(3) or error for the purpose of Section 6(4) shifted to the pursuers - Britannia Building Society v Clarke 2001 SLT 1355; AMN Group Ltd v Gilcomston Ltd. The argument advanced on behalf of the second defenders that the onus rests on the pursuers to show that their cause of action arose within the prescriptive period is not a correct statement of Scots law. English authorities such as Cartledge v E Jopling & Sons Ltd [1963] AC 758 were not concerned with prescription but with limitation, as stated in the English legislation. In Scotland it was necessary to remember that Section 11(3) of the 1973 Act clearly envisaged that the onus of proving awareness rests with the creditor; the onus in terms of Section 11(1) rests on the defender who asserts prescription. The concept of a shifting onus is accepted in the English authorities (see Cartledge v Jopling at page 784). In the present case the parties have proceeded throughout on the basis that the onus of establishing "prima facie" prescription rested with the defenders - at the procedural hearing, counsel for the pursuers had offered to lead evidence for the pursuers first at the preliminary proof but expressly reserved his position regarding onus, and nothing was suggested on behalf of either of the defenders at the Bar or in their notes of arguments that they sought to argue that the onus rested with the pursuers throughout. They should not be allowed to advance this argument now.

[35] On the question whether "prima facie" prescription has been established, the defenders require to establish the concurrence of damnum and iniuria - Dunlop v McGowans 1980 SC(HL) 73. In cases where multiple distinct defects affecting a building come to light at different times, Section 11(1) must be construed so as to admit the possibility of multiple independent prescriptive periods, especially where these flow from separate and distinct defaults - Sinclair v MacDougall Estates Ltd 1994 SLT 76; Musselburgh & Fisherrow Co-operative Society Ltd v Mowlem Scotland Ltd 2004 SCLR 412; AMN Group Ltd v Gilcomston Ltd. In considering whether defects, and correlative defaults, are truly distinct and discrete as opposed to being a development of an existing known defect and its correlative default a pragmatic approach is required (Musselburgh & Fisherrow; Johnston on Prescription and Limitation paragraph 2.26). In this regard it is relevant to look to the nature, location and scale of the defects as well as the nature of the default or breach of duty by which such defects were caused.

[36] Applying these principles to the facts of the present case, the defenders have failed to prove that the defects of which the pursuers complain occurred in the period outwith the potential prescriptive period. The principal defect of which the pursuers complain is panel corrosion which, having regard to its nature, location and scale, as well as the correlative defaults, was distinct from any previously occurring defect. This first manifested itself in 2005, and the second defenders themselves conceded at the time that this was a new problem. It was quite distinct and different from the earlier problem involving a small batch of panels which had been constructed with too thin an outer layer. There was no question of corrosion to any other constituent part of the roof (apart from "signs of rust" that had been observed in screws in the Arch Henderson report in 2004). There was no evidence linking rusting screws to panel corrosion, and no party offered to prove any such link. As regards location, prior to 2008 leaks were localised rather than widespread, and predominantly in the southwest corner of the building, although there were isolated examples of leaks in the roof void. There was nothing indicative of a failure of the roof overall. With regard to scale, earlier leaks were minor - even in July 2004 it was necessary to consider laying out paper in order to detect them. A certificate of making good defects was issued in June 2006; it is difficult to envisage this being issued if the leaks were as heavy and widespread as they were reported to be in 2008.

[37] The pursuers aver that the panel corrosion had as its correlative defaults, a combination of insufficiently frequent fixings and a composite panel the top skin of which was inadequately bonded to its insulation core. No previously occurring defect has been shown to have been caused by this combination of defaults or failings. Even taking these defaults in isolation, the inadequacy of the bond was not mentioned in any of the reports following the storm damage in January 2004. Although insufficiently frequent fixings was noted in the Arch Henderson report, there was no connection made with any damage (including even the storm damage). There was no connection made between insufficiency of fixings and weakening or breaking of the fixing seal, nor was there any suggestion of corrosion around the fixings. There was therefore no concurrence in early 2004 of that specific iniuria with any damnum; the failure to provide sufficiently frequent fixings had not at that stage caused any loss. Although Mr Fasken conceded that the roof had never been watertight, localised water penetration or absence of roof flashings was quite a different matter from the widespread water ingress indicative of a wholesale failure of the roof which occurred in 2008. The court should conclude that the panel corrosion which is the foundation of this action was a new and distinct defect occurring at the earliest in 2005.

[38] There are other defects complained of on Record. The failure to use the specified material for fixings gave rise to signs of rust which were noticed by Arch Henderson in 2004 where these were visible, but no cause of the rust was noted and the pursuers cannot be said to have had actual or constructive awareness of this defect at that time. Other defects such as condensation, algae on the wall cladding and safe access are averred as failures in design, and no evidence was heard as to when these occurred. Although the initial design was carried out outwith the prescriptive period, the second defenders were under a continuing duty to check that their design would work in practice and to correct any errors which might emerge - Brickfield Properties Ltd v Newton [1971] 1 WLR 862. Alternatively, the second defenders' design obligations were to "see the business through" - Keating on Construction Contracts (8^th edition) 13 - 057. The second defenders were under a continuing duty to monitor and remedy the matters complained of on Record until well within the prescriptive period.

[39] The receipt by the pursuers of the preliminary Arch Henderson report on 27 January 2004 was not in itself an event relevant to prescription, for several reasons. That report only identified what the authors regarded as defaults, but did not link these to specific defects. The concurrence of default and defect is necessary for prescription to run. In any event, even if the failure to provide sufficient fixings is regarded as a defect, it is one which was capable of being made good by the installation of additional fixings. The weakening and opening of seals around fixings, and the corrosion of roof sheeting around these fixings, is a quite separate and distinct defect, and there was never any evidence of this latter defect occurring more than five years before the raising of the action. Moreover, the pursuers had no reason to connect the failures described in the Arch Henderson report with the subsequently appearing defects of panel corrosion and widespread leaks; such a connection was not made in the Arch Henderson report or in any other report at about that time. It must be remembered that the pursuers were not experts in engineering or construction, and relied on the second defenders to provide them with specialist advice; Arch Henderson were only instructed in order to provide a second opinion. The primary advice given by the second defenders to the pursuers in the report dated 12 February 2004 was inconclusive, and did not even state that the fixings were inadequate.

[40] In this context, it is important to distinguish between the question "of what were the pursuers aware?" and "of what was Mr Fasken aware?". It was not until 23 February 2004 that the pursuers' directors and Mr Fasken met the second defenders to receive advice from them about all the relevant reports. The pursuers were in the middle of the busiest part of their season, with record volumes of fish being processed. Whatever Mr Fasken may or may not have understood of the reports, the pursuers were not aware and could not reasonably be expect to have been aware of the failures in regard to fixings and the other matters raised in the Arch Henderson report until they met with the second defenders on 23 February 2004.

[41] In considering the question of what the pursuers could with reasonable diligence have been aware of for the purpose of Section 11(3) of the 1973 Act, the appropriate standard is that of the ordinary prudent building owner having regard to all the circumstances: Glasper v Rodger 1996 SLT 44, per Lord President Hope at page 48. There was no evidence that the pursuers were actually aware of leaks occurring prior to 2006 on anything other than a minor and localised basis. The building as designed by the second defenders did not afford the pursuers any access to the external roof area. The second defenders, as the pursuers' professional advisors, felt able to issue a certificate of making good defects in June 2006. This would not have been done if they had been aware that the roof was leaking pervasively. In particular, the pursuers were not aware of the existence of any panel corrosion until 2005 at the earliest, and the second defenders appeared to regard panel corrosion as an entirely new problem. Moreover, the pursuers' actual and constructive awareness of any defects must be viewed against the background of their belief that these were being put right as part of the ordinary administration of the contract. This explains why prior to the issue of the certificate of making good defects in June 2006, they were unaware of any more fundamental problem requiring the replacement of the roof.

[42]Turning to the time within which the first defenders required to make good defects, counsel submitted that all the parties proceeded on the basis that the initial defects liability period had been extended beyond the period of twelve months following practical completion stated in the contract. Even if the defects identified after the storm damage in 2004 are treated as defects appearing outwith the initial twelve month period, they were dealt with by the parties as part of the ordinary administration of an extended process of making good defects - e.g. the second defenders' issuing of a schedule of apparent deficiencies dated 5 March 2004, instructions to the first defenders to make good, steps taken by the first defenders to make good, the issuing of the certificate of making good defects on 28 June 2006 and the release of retention monies to the first defenders at about that time. These were all defects of either workmanship or materials or both - Hudson 4.063 - 4.066. As the pursuers aver, "notwithstanding the carrying out of said repairs and further repairs, the roof continued to leak". Against that background, it is only at the earliest at some point after the issue of the certificate of making good defects in June 2006 that the pursuers would be able to raise proceedings in respect of the failure to make good defects. This right of action applies to all the defects of which the first defenders were given notice, including all complaints relating to fixings and more general instructions to review the roof problem and ensure that it was watertight. The pursuers aver that many of these remedial works were not done or not done adequately. Whether this is so or not is a matter of proof, but this is an important and distinct right of action which had clearly not prescribed.

[43] The pursuers have an esto case against the second defenders in terms of Section 6(4) of the 1973 Act to the effect that they were induced by words or conduct of the second defenders to refrain from raising proceedings against them. The pursuers rely on two different induced errors: an error as to the cause, nature and scope of the problems associated with the roof, and an error as to the protection the pursuers enjoyed under the Rigidal warranty. With regard to the first of these errors, if there were defects appearing in January 2004 or earlier which would require the roof to be replaced, why was the period of about 21/2 years thereafter spent with "making good" minor defects? Why were additional fixings inserted into a roof that would have to be replaced anyway? What was the point of issuing a certificate of making good defects in June 2006? Mr Fasken gave evidence that if the pursuers had been told by the second defenders that the roof required to be replaced, the pursuers would have raised proceedings against the defenders and not waited to see if the problems could be put right as part of the process of making good defects. The words and conduct of the second defenders induced the pursuers to believe that the problems with the roof could be put right and were being put right as part of that process. Not only did the second defenders not advise the pursuers that the roof required to be replaced, but by their positive conduct in administering the contract, including the issuing of the certificate of making good defects, the second defenders induced the pursuers to refrain from raising an action. Shortly after the meeting of 23 February 2004, the second defenders issued a schedule of defects (number 57 of the joint bundle); the contract was being administered by the second defenders in accordance with the administration of the defects liability period.

[44] With regard to the Rigidal warranty, both Mr Fasken and Mr Duthie gave evidence that the second defenders advised them throughout the period until August 2008 that the pursuers would be protected by the Rigidal warranty. Their evidence was supported by all the documentary productions in this regard. Even after the letter from Rigidal Systems Ltd intimating that they would accept no liability under the original Rigidal warranty, the second defenders advised the pursuers that the warranty was still valid (number 111 of the joint bundle). It was not until 25 August 2008 that the second defenders advised the pursuers that the fact that Rigidal had ceased to trade in 2002 "has taken this issue away from engineering into contract law". If this was beyond the second defenders' expertise, they should have told the pursuers so at an earlier stage. The fact that they did not do so suggests that they regarded it as within their responsibility at the material time. The second defenders were throughout the pursuers' point of contact regarding the Rigidal warranty - the warranty was forwarded to the pursuers by the second defenders. The second defenders raised no questions about the effectiveness of the warranty in their meeting with the pursuers on 23 February 2004, nor when repairs were being carried out in 2005. Both Mr Fasken and Mr Duthie gave evidence that the pursuers would have raised proceedings earlier had they known that they were not covered by the warranty. By their words and conduct, the second defenders induced error in the pursuers that they would have the protection of the warranty, and this error caused the pursuers to refrain from raising proceedings. The second defenders should have known that the granter of the warranty was no longer in existence and had ceased trading in 2002. They continued to reassure the pursuers until August 2008 that the warranty was still valid.

[45] Counsel for the pursuers summarised his position in paragraphs [120] to [128] of his written submission. Stated shortly:

(1) The defenders have failed to establish on the evidence that the pursuers' right of action has prima facie prescribed under Section 11(1) of the 1973 Act. The defect of panel corrosion first appeared at the earliest in 2005, and the defect of widespread leaking of the roof appeared after the issuing of the certificate of making good defects on 28 June 2006.

(2) The various failures or defaults noted in the Arch Henderson report are not properly categorised as defects. Even if they were defects, they were defects of a different kind from those that appeared subsequently.

(3) Even if the principal defects of panel corrosion and widespread leaks can be said prima facie to have prescribed under Section 11(1), for the purpose of Section 11(3) the pursuers had neither actual nor constructive knowledge of these defects until a time less than five years before the raising of this action, (a) because the second defenders' advice as to the storm damage in 2004 was inconclusive and was not discussed directly with the pursuers until the meeting on 23 February 2004, and (b) because the second defenders felt able to issue a certificate of making good defects in 2006 and described panel corrosion as "new" in 2005 and a "latent defect", and the pursuers were encouraged to believe that defects were being made good.

(4) With regard to other defects complained of on Record, the only defect that might be said to have prescribed is the corrosion of screw heads, which was noticed in the Arch Henderson preliminary report, but this did not establish what had caused that corrosion.

(5) In any event, the pursuers were induced to refrain from raising proceedings as a result of errors induced by the words or conduct of the second defenders. The action in so far as directed against the second defenders has not prescribed.

(6) Furthermore, a second clock starts to run in relation to the failure to make good defects. Time cannot begin to run under this heading until after the expiry of a reasonable period following receipt of a schedule of defects or an instruction to make good. The certificate of making good defects was not issued until June 2006.

[46] For each and all of these reasons, counsel renewed his motion to repel the defenders' pleas relating to prescription and to allow a proof before answer at large.

Submissions for the First Defenders
[47] Counsel for the first defenders did not accept that Mr Fasken was a reliable witness, but accepted that Mr Duthie was a reliable witness within the confines of his very limited knowledge of the events. Counsel disputed that the defenders bore any onus of proof in relation to prescription, and adopted the submissions to be made on behalf of the second defenders in this regard. In any event, the question of onus is not material in the present case because of the approach taken in the pursuers' pleadings, particularly in Article 5 of Condescendence at page 7E/F of the Record. Properly construed, these averments paint a picture of a deteriorating situation with increasingly severe roof leaks which were apparent in January 2004. The question of onus is not critical.

[48] The first defenders accepted that the provisions of Section 11(1) of the 1973 Act admit of the possibility of "successive discrete incidents of loss or damage flowing from separate and distinct defaults" being treated independently for the purposes of prescription, and that a pragmatic approach is required. However, the same act, neglect or default cannot give rise to more than one action with separate commencement dates for prescription purposes - a claimant cannot simply "split up" the loss and damage sustained as a result of an act, neglect or default in order to avoid that difficulty: Dunlop v McGowans 1980 SC (HL) 73, per Lord Keith at 81. An obligation to make reparation is a single indivisible obligation. In this case the pursuers' pleadings paint a picture of continuing problems with the roof, and corrosion cannot be disentangled from other problems. The starting point in identifying the cause of action is the pursuers' pleadings - Sinclair v MacDougall Estates at page 82D; Warren James (Jewellers) Limited v Overgate GP Limited [2010] CSOH 57 at paragraphs [5] and [6]. The proper approach is to be seen from Musselburgh & Fisherrow at paragraph [50], Johnston on Prescription and Limitation at paragraph 2.25 and AMN Group Ltd v Gilcomston North Ltd at paragraph 29.

[49] The present case is about the failure of a roof, and the story begins in January 2004; on their pleadings the pursuers do not get close to setting up a separate quinquennium. It is necessary to look to the pleadings and ask what is the cause of action. This case is not analogous to that of Glasper v Rodger 1996 SLT 44, in which the pursuers averred that they were unaware that any loss, injury or damage had been sustained; the pursuers were aware that their roof was defective and leaked, and so may reasonably be expected to take some steps to find out what has caused this. In order for a later period of prescription to begin to run, the pursuers would need to demonstrate a separate damnum or something giving rise to a separate obligation to make reparation - Kelly v Gilmartins Executrix 2004 SC 784, at paragraphs [13] and [14].

[50] Counsel drew five principles from the authorities referred to above:

(i) In order to establish separate quinquennia, the pursuers must establish distinct and discrete losses arising from distinct and discrete defaults.

(ii) To address that question, it is necessary to look to the pleadings and ask what case is being made, having regard also to any evidence given by the pursuers regarding the nature of their case.

(iii) It is not meaningful to consider these questions at too general a level - any breach could be reduced to an instance of negligent workmanship.

(iv) However, a microscopic assessment of the causes of an action is not appropriate either (see AMN Group at paragraphs [22] and [25]) - none of the subsections of Section 11 direct attention towards specific individual grounds of complaint. "Salami slicing" as argued for by the pursuers is not appropriate.

(v)               The court should adopt a pragmatic approach, and have regard to the nature, location and scale both of the defects and the causes of default.

[51] Counsel went on to consider whether, in the circumstances of the present case, separate quinquennia are made out. The pursuers advance two alternative arguments in support of this - the first being that the problem of corrosion only emerged in 2005, and it only became apparent at a later date that there was a problem with widespread leaking of the roof, and second, esto the first is wrong, the quinquennium only began to run at the end of the defects liability period.

[52] With regard to the first of these arguments, counsel adopted paragraphs 9-22 of his written submissions. The "principal defect" of which the pursuers complain is the corrosion of the roofing panels. They say that prior to 2008 the leaks that had occurred were localised rather than widespread. However, this argument ignores the large inundation of water in January 2004, which was not localised. The pursuers aver (at Article 9 of Condescendence at page 18 of the Record) that "the first manifestation of any potentially widespread problem with the roof did not occur until about June 2005." Counsel had four submissions in respect of this argument for the pursuers:

(a) If what the pursuers are arguing is that the quinquennium does not commence until a total or widespread failure of the roof, this argument is unsound in law. All that is required for the quinquennium to commence is material damage.

(b) The pursuers' pleadings do not support this attempt to divide up their complaints or to argue that this was the "principal cause" of their complaints, far less that widespread problems began in the roof only in June 2005. The first two sentences of Article 5 of Condescendence refer to ponding of water being observed in early 2004 on the ceiling of the cold store and on the ceiling of the blast freezers, both areas being remote from and not attributable to the storm damage. Damnum had emerged in January 2004, and iniuria had arisen then also and was apparent. The fixings were identified as the problem, and this remains a fundamental part of the pursuers' case.

(c) The evidence did not support the approach adopted by the pursuers. Mr Fasken accepted that the iniuria on which the pursuers rely includes defects that were apparent in January 2004. He accepted that following the incident in January 2004 there was widespread ponding remote from the area of damage - the letter dated 30 June 2004 (number 68 of the joint bundle) stated that "The roof had never been watertight", which is inconsistent with widespread failure first appearing in 2005. Mr Fasken also accepted that the pursuers' case was based on a failure to deliver a wind and watertight roof, and the consequential loss arising from that. Both witnesses accepted that this loss was on the agenda in January 2004, and it was in Mr Duthie's mind that the whole roof might have to be replaced.

(d) In short, the pursuers' analysis fails the criteria set out in AMN Group. On the evidence there was no distinct iniuria between the grounds of fault giving rise to the "wholesale failure" and those giving rise to the problems in January 2004.

[53] Counsel did not take issue with the proposition (stated in AMN Group at paragraph [11]) that there had to be scope for successive discrete incidents of loss or damage flowing from separate and distinct defaults to be treated independently for prescription purposes. However, it could not be argued that what arose in June 2005 was a separate and discrete damnum distinct from what had gone before; rather, this was another failure in an already failed roof. The pursuers' argument that the proper starting point is June 2005 is not supported by the pleadings or the evidence, and is inconsistent with the tests enunciated in paragraphs [27] and [49] of AMN Group.

[54] With regard to the pursuers' alternative argument that the quinquennium only began to run at the end of the defects liability period, counsel relied on paragraphs 23 to 27 of his written submissions, and adopted the submissions for the second defenders. The first defenders' position may be summarised as follows:

(i) The pursuers' primary case is based on failures of design, construction and materials causing failure of the roof and consequential loss. They cannot claim that their case is something else.

(ii) The defenders are not sued in respect of failures to obtemper their defects liability obligations nor in respect of any loss and damage arising from such failures. The argument hinted at in paragraph [108] of the pursuers' written submissions is unsound and is not foreshadowed in averments.

(iii) The pursuers' position is contrary to the accepted position as stated in Hudson on Building and Engineering Contracts (11^th Edition) at 5-027 and 5-053. The pursuers do not suggest that a right to sue under the defects liability provision acts as an ouster to suing for breach of contract.

(iv)             There was no evidence that the defects liability period was extended in the manner suggested. Mr Fasken's evidence was that all defects were understood to have been addressed by March 2003; the "defects" giving rise to the current proceedings occurred outwith the defects liability period.

[55] Turning to the question of whether the pursuers had made out a case that they were not aware and could not with reasonable diligence have been aware that loss, injury or damage had occurred until a date later than 3 February 2004, for the purposes of Section 11(3) of the 1973 Act, counsel adopted the terms of paragraphs 30 to 69 of his written submissions. In this regard the onus was clearly on the pursuers to demonstrate that by 3 February 2004 they were unaware and could not with reasonable diligence have been aware that they had sustained loss, injury or damage caused by breach of contract or duty. The correct approach was to consider damnum and iniuria separately.

[56] With regard to damnum, counsel made four propositions:

(i) There can be no doubt that the pursuers had actual awareness of damnum in January 2004. If it is correct that what occurred in that month is relevant damnum, there was actual awareness, and the question of constructive awareness does not arise.

(ii) Despite Mr Fasken's minimisation of the level of inundation in January 2004, on any view it was serious, and the pursuers were engaged in discussions about consequential loss and (in the mind of one director) the possibility of re-roofing.

(iii) Knowledge that something was far wrong is enough, even if the pursuers were not aware of the precise mechanism of this (AMN Group at paragraphs [49] and [51]).

(iv)             The pursuers accept that the onus was on them in this respect, and they have failed to demonstrate an absence of awareness of damnum.

[57] With regard to iniuria, the correct test is set out in AMN Group at paragraph [58]. In summary, the first defenders' position is that when the pursuers received the preliminary Arch Henderson report on 27 January 2004 they had everything they needed to meet the relevant test - i.e. that they were aware, or could with reasonable diligence have become aware, that relevant loss and damage known to them was actionable, in the sense that a stateable prima facie case could properly be advanced against someone. This is confirmed by the meeting of the directors of the pursuers with the second defenders on 23 February 2004, when they were considering recourse to legal proceedings. The witnesses themselves gave evidence that the second defenders' report did not take them any further forward. The pursuers have therefore failed to establish that they did not have actual awareness of iniuria before 3 February 2004, and again no question of constructive awareness arises.

[58] However, it was helpful to consider what the pursuers' case on constructive awareness might be. They were not able to say what information they did not have in January 2004 which they did have in February 2004 or thereafter. The pursuers' response to this was twofold. First, they thought that everything was being sorted out by the second defenders on their behalf. Whatever the merits of that argument as regards to the second defenders, it does not avail the pursuers against the first defenders. The second argument was that in January/February 2004 Mr Fasken was too busy to deal with anything other than processing fish, because of the pursuers' heavy workload at that time. Section 11(3) is not concerned with such an excuse. It matters not that the pursuers were too busy to consider this problem over a period of days or weeks - they had five years to consider it.

[59] All of this must be seen in the context of the unreliability of Mr Fasken's evidence. Counsel did not attack his credibility, but submitted that he gave answers most favourable to his position, sought to minimise problems before June 2005, and avoided answering questions. In January and February 2004 the directors of the pursuers and Mr Fasken must have been communicating by e-mail regarding the roofing problems, and there was a surprising absence of documentary evidence to explain what was happening at this time. For this reason the court should not draw an adverse inference from the absence of any evidence for the defenders.

[60] For all of these reasons the action against the first defenders has prescribed, the pursuers cannot avail themselves of Section 11(3) of the 1973 Act, and the first defenders should be assoilzied.

Submissions for the second defenders
[61] Counsel for the second defenders moved me to sustain their third plea-in-law and grant absolvitor in respect of the second defenders. He adopted the submissions for the first defenders in their entirety. The nub of the pursuers' case against the second defenders was that they had failed in their obligations of design, with particular regard to fixings. Insufficiency of numbers and frequency of fixings, and the quality of the fixings, was a feature of the pursuers' complaints ever since the premises were occupied, and are a theme throughout the pursuers' pleadings. Mr Fasken confirmed this in his evidence, and confirmed that the basis of the pursuers' case is the report by Mr Fergusson dated 12 May 2009 (number 43 of process). Paragraph 1.5.1 of that report makes clear the part that inadequacies of fixings played in facilitating the penetration of the marine environment moisture.

[62] Turning to the onus of proof, counsel observed that it seems to be accepted in Scottish authorities in the Outer House that the initial burden of establishing prescription lies on the defenders - Strathclyde Regional Council v WA Fairhurst and Partners 1997 SLT 658, and the AMN Group decision. However, the latter case did not advance matters on this aspect, because parties were in agreement as to where the onus lay. Although Lord Emslie expressed the view that the parties' agreement was well founded and that he accepted that the decision in Strathclyde Regional Council settled any uncertainty as to which party must bear the onus of proof in connection with prima facie prescription for the purposes of Section 11(1) of the Act, this view was expressed without having had the benefit of argument on the point. As appears from the discussion in Johnston on Prescription and Limitation at paragraphs 20.08 to 20.15, the law is not clear. The leading English authority on the subject is Cartledge v E Jopling and Sons Limited [1963] AC 758, which was not placed before the court in Strathclyde Regional Council. Cartledge was concerned with Section 2(1) of the Limitation Act 1939; Lord Pearce observed (at page 784) that "I agree that when a defendant raises the Statute of Limitations the initial onus is on the plaintiff to prove that his cause of action accrued within the statutory period." This remains the law relating to limitation in England - once limitation is put in issue, the onus lies on the plaintiff to prove that his cause of action accrued within the relevant period before the writ - London Congregational Union Inc v Harriss & Harriss [1988] 1 All ER 15; First National Commercial Bank Plc v Humberts [1995] 2 All ER 673; DNB Mortgages Limited v Bullock & Lees [2000] PNLR 427. The same approach was taken in the Outer House in Richardson v Quercus Limited (25 March 1987, unreported except in Note form at 1997 SCLR 815) in which Temporary Judge Wheatley (as he then was) stated that "Once the question of prescription has been raised, I think it is for the pursuer to prove that his title to sue has been preserved". Although the decision was upheld on appeal (1999 SC 278) the Inner House did not require to deal with the issue of onus. However, a similar approach to that of the English courts appears to have been taken with regard to limitation of actions in Brown v North British Steel Foundry Limited 1968 SC 51 - another authority which was not placed before the court in Strathclyde Regional Council.

[63] Although many of these cases related to limitation, the argument that the onus rests on the pursuers is even stronger when considering prescription, because it is pars judicis to notice that an obligation has prescribed, and a pursuer coming to court must show an extant obligation. There cannot be a burden on the defenders to aver or prove that the obligation has been extinguished by prescription. This was recognised by the Lord Justice Clerk in Dunlop v McGowans (at page 34) where he observes that "The extinction of an obligation means that there is no legal right in existence, a matter of which the court can take notice ex proprio motu, and there is no right of action from the start."

[64] Turning to the identification of the terminus a quo, a cause of action accrues on the concurrence of iniuria and damnum. There can be only one point of concurrence for any given cause of action. With regard to iniuria, the pursuers do not assert any failure of design, or indeed any other failure, against the second defenders which post dates the certificate of practical completion. The pursuers accept that the initial design was carried out outwith the prescriptive period, but submit (at paragraph [85] of their written submissions) that they were under a continuing duty to check that their design would work in practice and correct any errors, and "to see the business through". This is not what is averred on their behalf on Record. Design on the one hand, and supervision of remedial works on the other are separate and distinct duties. The pursuers rely on the former, and cannot assert an ongoing duty which is not averred on record. The relevant iniuria are failures to comply with the duties of design incumbent on the second defenders in contract and in delict. These failures were complete when the building was designed, long before practical completion in September 2002.

[65] Although it may be the general rule that defaults of contractors and others attract no legal liability until the date on which a final certificate is issued (see AMN Group at paragraph [35]), any such general rule does not apply to the second defenders in the present case, (a) because the "stalling" of actionability arising from the defects liability period is the result of a contractual provision which applies only to contractors, not to person in the position of the second defenders, and (b) because the present claim relates not only to defects in the roof which could be put right, but to consequential physical damage to the building itself. Reference was made to P & M Kaye Limited v Hosier and Dickinson Limited [1972] 1 WLR 146, Hudson on Building and Engineering Contracts (11^th Edition) 5-053 and Keating Construction Contracts (8^th Edition) 10-023. Consequential damage was being discussed in January and February 2004 (see numbers 48 and 54 in the joint bundle); as soon as consequential damage arises, the usual rule applies and this is enough for accrual of a cause of action. The possibility that the roof damage might be put right by the first defenders (in the defects liability period) or by the manufacturers of the roof panels (under the warranty) does not stop the prescriptive period from running quoad the second defenders - Jackson v Clydesdale Bank Plc 2003 SLT 273.

[66] There was therefore no identified wrong by the second defenders after the date of practical completion in September 2002, and no question of actionability being suspended or "stalled" after that date. As soon as material loss occurred after the date of practical completion, the pursuers' cause of action was complete.

[67] Relevant damnum was sustained on 31 December 2003/1 January 2004 such as to commence the quinquennium. As at January 2004 there was material damage to the roof, material ingress of water, leaks "all over the place", ponding of water on top of the cold store and consequential damage to the interior fabric of the building. The later emergence of corrosion does not give a new cause of action; it is merely a later developing consequence of the same hypothetical failures in design that gave rise to the damage of the roof in January 2004. As Mr Fasken observed, "it was all down to the fixings", and the pursuers' complaint based on Mr Fergusson's report is that the fixings allowed water ingress and corrosion. Time starts to run (at the latest) when physical damage occurred to the building itself, namely the damage to the roof and the consequential damage caused by the ingress of water which occurred at Hogmanay 2003 - Pirelli General Cable Works Limited v Oscar Faber and Partners [1983] 2 AC 1, per Lord Fraser of Tullybelton at 18G/H. Indeed, it could be argued that as the roof never functioned properly the cause of action arose when the building was handed over to the pursuers on practical completion - London Congregational Union at page 23F. However, in the circumstances of the present case it is unnecessary to go so far - on any view by Hogmanay 2003 there was clear evidence of damage to the building which was caused by inadequate fixings. Mr Fasken agreed under cross-examination for the second defenders that he was well aware having received the Arch Henderson preliminary report on 27 January 2004 that there was a widespread problem of fixings across the roof, and that the damage to the roof was not caused simply by excessive and unexpected wind load.

[68] There being no separate iniuria, there is no question of separate causes of action. The mere fact that a different type of loss occurs does not give rise to a different cause of action - Cartledge v Jopling; Brown v North British Steel Foundry; Dunlop v McGowans; Pirelli v Oscar Faber; London Congregational Union; Kelly v Gilmartins Executrix; Abbott v Will Gannon and Smith Limited [2005] BLR 195 [2005] EWCA Civ 198; A v Glasgow City Council 2010 SLT 358, [2010] CSIH 9.

[69] Counsel drew an analogy with a personal injuries action in which a pursuer sustained a broken leg in an accident, and some ten years later developed osteoarthritis as a result of the broken leg. He submitted that the handing over of the building on practical completion, or at least the physical damage which was evident at Hogmanay 2003, was equivalent to the breaking of the leg, and time starts to run for the purposes of prescription at that date. There is no difference when assessing the date on which one may sue for damage between prescription and limitation of actions. This argument is entirely consistent with the views of the First Division in Kelly v Gilmartins Executrix (at paragraphs [13] and [14]). Counsel accepted that separate causes of action prescribe separately, but in the present case there is no separate cause of action. The pursuers are attempting to use a late emerging condition (i.e. corrosion) in order to justify the late raising of the action, yet counsel for the pursuers accepted that the inadequacy of fixings was a sine qua non of the corrosion.

[70] It was clear from Warren James (Jewellers) Limited that decisions regarding limitation of actions may be relevant to issues of prescription. The broken leg analogy referred to above was therefore apposite. If one breaks a leg in year one, and develops arthritis in year ten, time starts to run in year one. If one designs a building negligently so that the roof sags in year one and collapses in year two, time starts to run in year one. In the present case, if one designs a roof with inadequate fixings so that it fails in Hogmanay 2003 and exhibits corrosion in 2006, time starts to run at Hogmanay 2003. This is consistent with the reasoning in AMN Group. Counsel accepted that separate and distinct causes of action have separate and distinct quinquennia, but that is not the situation in this case. There are no separate causes of action here - the case against the second defenders is based on negligent design. That hypothetical negligence and/or breach of contract had occurred by practical completion, and had caused physical damage at the latest by Hogmanay 2003. That is the concurrence of iniuria and damnum. Later emerging corrosion is only an exacerbation, progression or extension of problems already known. At least by the time of the Arch Henderson preliminary report on 27 January 2004 it was clear to the pursuers that the design and construction of the roof was faulty and that they had sustained loss as a result. The pursuers cannot extend the quinquennium by adding additional failures to known existing failures once loss has arisen, unless there is a separate and distinct cause of action. There is no separate or distinct cause of action here; everything comes back to the sine qua non of the fixings - AMN Group at paragraph [29]; Greater Glasgow Health Board v Baxter Clark and Paul 1990 SC 237. The pursuers cannot point to a problem of bonding of panels which is noticed at a later date and add this to their complaints about fixings - to do so would be contrary to what was decided in AMN Group (at paragraphs [27] and [29]) and the Musselburgh and Fisherrow case. The second defenders in the present case face allegations of design failure which resulted in loss (at the latest) by Hogmanay 2003; prima facie, and subject to Sections 11(3) and 6(4) of the Act, this cause of action has prescribed.

[71] With regard to postponement under Section 11(3) of the Act, the onus plainly lies on the pursuers - Glasper v Rodger. On the normal principles of agency, the knowledge of Mr Fasken is the knowledge of the pursuers themselves. The reasoning in AMN Group is relevant in the present case to both damnum and iniuria. With regard to damnum, once there is knowledge of material damage, this is sufficient (see AMN Group at paragraphs [50] and [51]). The pursuers had actual awareness of damnum by 5 January 2004 at the latest.

[72] With regard to iniuria, as observed in AMN Group at paragraph [58] certainty or even probability of success in a claim for damages is not required - "The question is...whether the pursuers were by the critical dates aware, or could with reasonable diligence have become aware, that relevant loss and damage known to them was actionable, in the sense that a stateable prima facie claim in negligence could properly be advanced against someone." The pursuers have failed to prove that they lacked either actual or constructive knowledge of a prima facie claim against someone. They acquired that knowledge, at the latest, by 27 January 2004, and they then had five years in which to investigate the problem and formulate and raise their claim. As Mr Fasken stated in evidence, a new roof should not have failed so quickly. He spoke to the history of roof problems prior to Hogmanay 2003, and accepted that at no point were the pursuers actually given a watertight roof. In the course of January 2004 the pursuers were expressing great concern over the damage on Hogmanay 2003, they were contemplating the possibility of the entire roof requiring to be replaced and they were raising the question of consequential damage caused by ingress of water. The Arch Henderson report of 27 January 2004 made it clear that the Hogmanay storm was not of excessive strength and that the roof, had it been properly designed and installed, should have withstood it. The report raised the question of sufficiency and design of fixings, on which a substantial part of the pursuers' case rests.

[73] The evidence for the pursuers was that they did not raise an action sooner because they felt secure in their reliance on the Rigidal warranty. However, both Mr Fasken and Mr Duthie stated in evidence that they knew that the warranty did not cover failures in design or installation, and they had been told by Arch Henderson in their report dated 27 January 2004 that there were problems with design or installation. Section 11(3) of the Act cannot therefore avail the pursuers.

[74] The response for the pursuers is to the effect that they were unaware of any more fundamental problem requiring replacement of the roof until 2006. This is irrelevant. The test in Section 11(3) is not lack of knowledge of the scale of the problem, or the potential consequences of the problem, but rather the lack of any actual or constructive knowledge of there being a problem in the first place. It was clear from the evidence that the pursuers had actual or constructive knowledge by early January 2004 of there being a problem with the roof and consequential damage to the building. That they did not then know how serious the problem might turn out to be is irrelevant.

[75] Turning to the argument under Section 6(4) of the Act, again the onus of establishing this exception lies with the pursuers - Adams v Thorntons 2005 SC 30. The prescriptive period will only be interrupted if the pursuers can show that the reason they did nothing to enforce the claim against the second defenders was because they were misled by the second defenders' fraud or by error induced by their words or conduct - BP Exploration Operating Company Limited v Chevron Transport (Scotland) 2002 SC (HL) 19 at paragraph [33]. There is no suggestion of fraud in the present case. Where is the error? The only suggestion advanced in the evidence is the mistaken belief that the pursuers were covered by the Rigidal warranty. However, that is not a relevant error for the following reasons:-

(i) The pursuers were in fact covered by the warranty, but it simply proved to be unenforceable as a result of corporate restructuring on the part of the manufacturers.

(ii) As the pursuers always knew, the warranty only covered materials, and not failures in design or installation. Given the pursuers' knowledge by, at the latest, 27 January 2004 that there was a problem with fixings, and that the warranty would not cover this problem, any error in this regard is irrelevant.

(iii) Section 6(4) is directed at error relating to the relevant obligation - i.e. an error which deters the pursuer from suing the defender in question by suggesting that he is not liable. BP Exploration was concerned with such an error. It is not a relevant error to believe that someone else might make good the loss that has been suffered. The viability of any claim by the pursuers under the warranty was res inter alios acta in a question between the pursuers and the second defenders. An extension of time on this basis would offend against basic principles - Jackson v Clydesdale Bank Plc; Adams v Thorntons.

(iv)             The warranty plainly did not extend to the consequential damage caused by water ingress on Hogmanay 2003, and there was no suggestion in the evidence that the second defenders ever misled the pursuers as to responsibility for the roof problems or liability for making good the damage caused thereby.

[76] Moreover, any advice to the pursuers that the warranty still gave them protection did not amount to advice that the second defenders themselves were not liable. The statutory test requires the pursuers to show that they were induced to "refrain from making a relevant claim in relation to the obligation". The error must relate to the obligation, not to the fact that there might be indemnification aliunde. There was no suggestion that the pursuers were misled by anyone into thinking that Rigidal would pay for the consequential damage following on Hogmanay 2003, or would have any liability for failures in design or installation.

[77] The pursuers advanced a subsidiary argument (in paragraphs [110] to [114] of their written submissions) regarding error as to cause, nature and scope of the problems. They suggested that the failure by the second defenders to supervise the making good of defects may have contributed to the widespread leaks and panel corrosion and ultimately the need to replace the roof. There is no such ground of action averred against the second defenders - the ground of action on which the pursuers rely is failures in design which end with practical completion. There is no case based on failure to supervise the making good of defects. The warranty is a red herring - both Mr Fasken and Mr Duthie accepted that the warranty did not cover consequential damage and did not cover defects in design or installation. The pursuers have failed to prove any of the criteria identified in Adams v Thorntons (at paragraph [66]) necessary for the invocation of Section 6(4), namely (1) that they were in error as to the scope of their remedies and because of that error refrained from pursuing a claim against the second defenders, (2) that the error was induced by the second defenders, and (3) that the error could not have been discovered with reasonable diligence, given the knowledge which the pursuers had by 27 January 2004 at the latest.

[78] For these reasons counsel submitted that the pursuers' arguments under Sections 11(3) and 6(4) were peripheral and not made out, and that the real issue is "prima facie" prescription under Section 11(1). Once the pursuers discovered the roof damage on 5 January 2004, and once they were told on 27 January 2004 that this was not as a result of unforeseeably extreme weather conditions, time began to run. Their right of action had prescribed by 4 February 2009.

Response for the pursuers
[79] Counsel for the pursuers responded to the arguments for the defenders as follows. With regard to onus of proof, he accepted that the onus rested with the pursuers in relation to Sections 11(3) and 6(4); his submission that the onus rested with the defenders related only to Section 11(1). Even in Cartledge v Jopling and the other English authorities it is recognised that there may be a shifting onus. It follows that if the pursuers establish that the principal defect of which they complain, namely corrosion of the roof panels, occurred within the prescriptive period, the onus falls back on the defenders to explain why, despite this, the cause of action has prescribed. With regard to the argument that the underlying reason for the onus resting on the pursuers applied with regard to prescription even more strongly than with regard to limitation, the question of onus is not just a matter of principle but of practicality, with a number of different procedural implications. For example, Section 19A of the 1973 Act (as amended) applies to limitation of actions in Scotland, which may explain why the onus is placed on pursuers in that respect. It does not follow that the onus rests on pursuers in a question of prescription.

[80] With regard to the issue of failure of fixings, neither of the defenders have properly characterised the nature of the pursuers' case nor answered the fundamental problem of concurrent causes of loss. The second defenders in their submissions assumed that the corrosion arose from a problem with fixings. However, product failure is based on a separate iniuria, namely the failure of the roof panels to perform. The pursuers' case against the second defenders is based on the failure to inspect when the panels were on site, and to identify that the gap between the inner and outer lining of the panels allowed water ingress. Counsel denied that he had characterised inadequate fixings as the sine qua non of the pursuers' claim; at most it was a sine qua non. The dominant cause of the corrosion was the inherent inadequacy of the panels. (When asked by the court how it could reach a view on this issue without expert evidence, counsel observed that the decision on where the onus of proof lay may be determinative.)

[81] The pursuers' argument regarding the defects liability period was made in the context that there might be a question as to which of the fixings or the panel failure might be said to be the dominant cause of the failure of the roof. The failures in fixings were observed during the defects liability period, and notices were served on the contractors to put these right. Water ingress was still observed, so the contractors did not solve the problem and this was therefore not the dominant problem. Counsel reiterated that the failure to make good defects within the defects liability period (as extended by parties' acceptance as if it was still in existence) was a separate breach of contract which has not prescribed. Whilst this was a contractual obligation on the first defenders, the second defenders still had a continuing obligation to supervise the works and put right problems of design. A new prescriptive period began to run in relation to a breach of obligations arising from failure to remedy within the defects liability period; time begins in this regard after the expiry of a reasonable time after the contractors were given notice. This was in about March 2004.

[82] With regard to the argument that the pursuers were aware of the elements of a stateable case against someone on receipt of the preliminary Arch Henderson report, this did not state that the fixings were the cause of the damage at Hogmanay 2003, so the pursuers did not have the basis of an action at that time.

[83] Finally, with regard to the second defenders' submissions on Section 6(4) counsel reiterated that the pursuers were induced to refrain from bringing proceedings because of their erroneous belief, induced by the second defenders, as to the cause and nature of the defects in the roof. They were led to believe that these could be put right during the defects liability period. They have never been put right.

Final remarks for the second defenders

[84] In response to the discussion about how the court could reach a view on whether the dominant cause of the corrosion was the inherent inadequacy of the panels or an extension or consequence of the fixings problem, counsel submitted that the answer lay in paragraph [5] of the Warren James (Jewellers) case - the question whether the breach was a continuing breach must be answered by reference to the pursuers' pleadings. In order to discover what the pursuers' case is here, one must look to Article 5 of Condescendence (at page 8D/E of the Record). This is the clearest case of concurrent fault. There is no mention in the pursuers' pleadings of a separate breach of the defects liability period.

Discussion

[85] I make it clear at the outset that I found both Mr Fasken and Mr Duthie credible and generally reliable witnesses. I did not form the impression that they exaggerated their evidence to suit the pursuers' case. To the contrary, they were each prepared to accept propositions which were put to them and which were not helpful to the pursuers' case. I considered that they were each doing their best to assist the court. They made it clear in their evidence that the main focus of their attention in January 2004 was dealing with the processing of large quantities of fish, and they also made it clear that there were aspects of the discussions about roofing problems of which they were unaware or the details of which they could not remember. I also accept the submission for the pursuers (based on Ross v Associated Portland Cement Manufacturers Limited and AMN Group Limited) that as the defenders did not lead any evidence themselves they cannot complain if the most favourable inferences are drawn from the evidence led on behalf of the pursuers.

Onus of Proof.

[86] There is divergence of opinion in the Outer House as to where the burden of proof lies in relation to the short negative prescription for the purpose of sections 6 and 11(1) of the 1973 Act. There is no Inner House authority which bears directly on this point. In some of the cases in which the question of onus is touched on, the matter was the subject of agreement; in others, the views of the court were obiter or were expressed at debate before any evidence was led. In the present case the parties are agreed that in relation to factors which might delay the running of the prescriptive period by reason of section 11(3) or section 6(4) of the 1973 Act, the onus rests with the pursuers. This agreement appears to me to be well-founded, and is consistent with the language of the sections and with authority such as Glasper v Rodger and Britannia Building Society v Clarke. However, there is no agreement as to where the onus lies in relation to section 11(1). In many cases this may not be of importance, but in the present case it may be significant, standing the facts that the parties were allowed a preliminary proof on the question of prescription and I heard no technical or expert evidence about the nature or causes of the problems with the roof of the premises, nor whether these were discrete defects involving separate defaults, nor whether corrosion in roofing panels which may have become apparent in 2008 was an extension or development of pre-existing problems in 2003 or January 2004.

[87] Lord Abernethy dealt with the question of onus in relation to the short negative prescription in Strathclyde Regional Council v W A Fairhurst & Partners and expressed the opinion that

"Unless the matter is clear on the face of the pursuers' pleadings, it is for the defenders not only to take the plea of prescription in terms of section 6 but also to aver and, if necessary, prove facts and circumstances which justify it."

He did so on the same reasoning as he applied to the question of onus in relation to the long negative prescription. (It is to be noted that he was approaching the matter at procedure roll debate, considering the parties' pleadings without having heard evidence. He repelled the defenders' plea to prescription on the basis that he was not satisfied that on their pleadings the pursuers must fail at proof, applying the test in Jamieson v Jamieson 1952 SC (HL) 44). He decided that the general rule that the burden of proof rests on the party who alleges the affirmative applied, and that the affirmative in this context is that the obligation has subsisted for the prescriptive period. The onus of proving prescription for the purpose of section 11(1) therefore rested with the defenders.

[88] Lord Emslie was not given the benefit of argument on this point in AMN Group Ltd; parties were agreed that the onus of proving prima facie prescription under section 11(1) lay upon those by whom pleas of prescription were advanced, but he went on to express the view that

"The parties' agreement on these related issues was well-founded, and in particular I accept that the decision in Strathclyde Regional Council settled any uncertainty as to which party must bear the onus of proof in connection with prima facie prescription for the purposes of section 11(1) of the Act."

[89] However, the contrary view was expressed by J F Wheatley, QC, sitting as a temporary judge (as he then was) in Richardson v Quercus (unreported, 25 March 1997) in which he expressed the view that "once the question of prescription has been raised, I think it is for the pursuer to prove that his title to sue has been preserved." The question of onus of proof was not raised before the Inner House (1999 SC 278) so it is perhaps unsurprising that no comment was made about this opinion.

[90] Attention was drawn to the uncertain state of the law on this point by Mr Johnstone in his work on Prescription and Limitation, particularly at paragraphs 20.08 - 20.14. He expressed the view that

"If the pursuer fails to make a case for postponing the starting date, the court will still have to decide who must prove when, viewed objectively, the loss occurred. Since the five year prescription is not conceived as a long stop, it may be that in general the burden of proving that it has been completed should rest on the defender. But this general rule must be subject to exceptions in cases where it would involve the defender in proving a negative or proving facts peculiarly within the pursuer's knowledge."

[91] I was referred by counsel for the second defenders to various English authorities, starting with Cartledge v Jopling. I was also referred to Scottish authority with regard to limitation, such as Brown v North British Steel Foundry. I did not derive great assistance from these authorities, which were concerned with a distinct and different legal concept, namely limitation of actions, which contrasts with the doctrine of prescription. However, I agree with the point made by counsel for the second defenders that logically the argument that the onus must rest with the pursuer applies with greater force in cases of prescription than it does in cases of limitation. The decision in Richardson v Quercus may perhaps be described as being more in line with these authorities than is the decision in Strathclyde Regional Council.

[92] The observation of the Lord Justice Clerk in Dunlop v McGowans (at page 34 of the 1979 Report) emphasises the distinction between prescription and limitation, and may perhaps bear repeating, as follows:-

"Section 11 is in Part I of the Act which deals with Prescription. Section 17 is in Part II of the Act which deals with Limitations of Actions. Section 11 in conjunction with section 6 deals with the extinction of obligations. Section 17 deals with the limitations on the periods within which an action of damages is brought. The extinction of an obligation means that there is no legal right in existence, a matter of which the Court can take notice ex proprio motu, and there is no right of action from the start. Section 17 is a defence to an action which may be invoked by a defender, but there are statutory qualifications which a pursuer may pray in aid."

[93] No doubt a court could only take notice of the absence of a legal right ex proprio motu in the clearest of circumstances. The circumstances of the present case are far from clear, and I certainly do not feel able to take notice of this ex proprio motu. However, I find it difficult to understand why there should be a burden on a defender of proving that a pursuer has no legal right of action. As Mr Johnstone observes in his discussion on this subject, the difficulty of the general rule that the burden of proof falls on the party who asserts the affirmative lies in deciding what is the affirmative. The proposition that the pursuer has an existing legal right of action is no less an affirmative proposition than the proposition that a right of action has prescribed.

[94] In the present case, the pursuers come to court asserting that they have an existing legal right against the defenders. The defenders deny the existence of that legal right by raising the issue of its extinction by prescription. Viewed in this light, I consider that the burden of satisfying the court that they have a legal right of action against the defenders rests with the pursuers.

[95] It does not seem to me that there is anything innately unfair or contrary to principle in requiring the pursuers to satisfy the court that they have a legal right of action. There is no greater difficulty for the pursuers in discharging the burden of proof than there would be for the defenders; what they require to do is to lead evidence that the concurrence of damnum and iniuria occurred after 4 February 2004. That is no more difficult a burden to discharge than it would be for the defenders to prove that this concurrence occurred before 4 February 2004. In circumstances in which there is no particular unfairness in placing the burden on one side or the other, it is consistent with principle to place the burden on the pursuers who assert that they have a legal right against the defenders. If, in a clear case, the court can have regard ex proprio motu to the extinction of an obligation meaning that there is no legal right in existence, I find it difficult to understand why (in a clear or unclear case) the burden of proving that there is no legal right in existence should rest with the defenders. I agree with the view expressed in Richardson v Quercus that once the question of prescription has been raised it is for the pursuer to prove that his title to sue has been preserved.

[96] Counsel for the pursuers sought to argue that because the wording of section 11(3) clearly places the onus on the pursuers in that regard, so it may be presumed that the onus in section 11(1) rests with the defenders. I can find nothing in the language of section 11(1) or section 6(1) to support this contention. Of course I recognise, as do the English authorities, that there may be a changing of the onus of proof, and that one party may have to bear the burden of proof in relation to a test set out in one subsection of a statute, while another party must bear the burden of proof in relation to a test set out in a different subsection. However, it does not follow that this is always the case. For the reasons given above, I have reached the conclusion that the burden of proof for the purposes of section 11(1) of the Act rests with the pursuers, just as it does for the purposes of sections 11(3) and 6(4).

Section 11(1) of the 1973 Act.

[97] Parties were in agreement that section 11(1) admitted of the possibility of successive discrete incidents of loss or damage flowing from separate and distinct defaults being treated independently for the purposes of prescription, and that a pragmatic approach is required. Each of the parties relied on Sinclair v MacDougall Estates, Musselburgh & Fisherrow and AMN Group Ltd. There was a large degree of agreement as to the underlying legal principles to be applied. The issue was the application of these principles to the circumstances of the present case. In particular, the dispute between the parties centred largely on whether the defects, and the correlative failures, which are encompassed in the description "corrosion of roof panels" and which came to prominence in 2005 and subsequent years were truly distinct and discrete as opposed to being a development or a further emerging example of an existing known defect and its correlative failing.

[98] I agree with the defenders that the starting point in identifying the pursuers' cause of action is the pursuers' pleadings - Sinclair v MacDougall Estates; Warren James (Jewellers) Limited v Overgate GP Ltd. In the present case the pursuers' pleadings are sufficiently full and detailed that it is not convenient to repeat them here. The factual averments as to problems with the roof are contained in article 5 of Condescendence, the averments regarding the first defenders' alleged breaches of obligations are in article 6, and those relating to the second defenders' alleged breaches of obligations are contained in article 7.

[99] Within the pursuers' pleadings, there are some passages which give some focus to the nature of the pursuers' complaints. At page 7E of the Record the pursuers aver as follows:

"In early 2004, after an inspection occasioned by storm damage to the roof on the night of 31 December 2003/1 January 2004, ponding of water was observed on the ceiling of the cold store and on the ceiling of the blast freezers. Both these said areas of ponding were remote from and therefore not attributable to the storm damage."

The pursuers go on to aver that following inspections in 2008 and 2009 the following defects were observed:

"From an internal inspection, the roof panels showed undulations on the soffit lining throughout the whole of the roof, indicating delamination of the lining panel from the insulation core. There were open joints at the side laps of the panel indicating poor adhesion of the side fixings of the panels. From the underside of the roof, roof sheets could be pushed up indicating inadequate fixings or failed fixings. A variety of fixing types had been used to fix the panels, both self-tapping and self-drilling. Some of the fixings were not of stainless steel. A number of the fixings were severally corroded. There were not enough fixings or they were positioned insufficiently frequently having regard to the location of the building in a coastal marine environment. The sheeters' notes on the subcontractors' drawings required the application of mastic sealant. This appeared to have become detached, assuming it was ever applied, following the failure of fittings due to corrosion. External inspection of the roof panels revealed that widespread severe corrosion of the external aluminium skin of the roof panels had taken place. The corrosion was not isolated to the fixing positions but was sporadically placed throughout the whole roof. In several areas, around fixings and elsewhere, the top skin had become delaminated from the insulation core. Water was present within the core of the insulated panels. The top skin of the composite panel was inadequately bonded to the insulation core."

[100] The passage of the pursuers' pleadings to which counsel for the second defenders drew particular attention at paragraph [84] above is in the following terms:

"The combination of insufficiently frequent fixings and a composite panel whose top skin was inadequately bonded to the insulation core allowed movement of the top skin to occur, compromising the integrity of the seal created by the washer to the fixings, and allowing the external environment to penetrate the interstices of the roof sheet."

The alleged failures of the first defenders are focussed principally in the pleadings at page 10B/F of the Record, and those of the second defenders at page 12A to 13F.

[101] In considering the case advanced by the pursuers in their pleadings, I am in complete agreement with the observations of Lord Emslie in AMN Group at paragraphs [27] and [29]. The averments in the opening sentences of article 5 of Condescendence amount in my view to averments of the concurrence of damnum and iniuria as at 31 December 2003/1 January 2004. Thereafter problems continued to affect the roof, but on the basis of the pleadings I do not find it possible to categorise this emerging loss or damage as truly distinct and discrete from what has gone before, nor to categorise the correlative defaults as new and different. To the contrary, the pursuers' averments suggest that the later emerging problems were closely connected with the problems that became apparent in January 2004; they may be described as related developments or further emerging examples of these earlier problems. In particular, the pleadings do not suggest that the problem of roof panel corrosion and water penetration of the interstices of the roof sheets were unconnected with insufficiently frequent fixings. I consider that counsel for the second defenders was correct to categorise this as a case of concurrent fault. For example, I find it impossible, looking to the pursuers' pleadings as a whole, to identify a time at which inadequacies of fixings (or insufficient frequency of fixings) ceased to play any part in the continuing problems in the roof. On the pursuers' pleadings, fixings appeared to have continued to be involved throughout. As counsel for the pursuers accepted, inadequate fixings were a sine qua non. On the basis of the pleadings I cannot characterise the loss or damage which emerged in 2005 or later as being truly distinct and discrete from what had gone before, nor can I characterise the correlative default as new and different.

[102] On the basis of the pursuers' pleadings, material damage to this roof had occurred by early January 2004 and there was a concurrence of damnum and iniuria at that time. There was material ingress of water in areas remote from and not attributable to the storm damage. To use the reasoning in AMN Group, if by the time the present action was raised prescription had already run on relevant defects concurring with relevant defaults vis à vis the roof as a whole, the operation of that prescription cannot be reversed by tabling some additional ground of complaint - particularly if that ground of complaint is closely connected with or a development of earlier defects. As counsel for the first defenders described it, "salami slicing" is not appropriate, and while it is necessary to have regard to the nature, location and scale of particular defects or incidents of damage, a microscopic assessment of the causes of an action involving fragmentation of both losses and default is not acceptable.

[103] The view which I have taken as to the nature of the pursuers' case on the pleadings is reinforced by the evidence. The picture painted by Mr Fasken in his evidence was one of a roof which had never been properly watertight since the pursuers occupied the premises in July 2002. By November 2002 Mr Johnstone of the second defenders was raising with the first defenders the numbers and spacings of fixings, and Mr Fasken stated that this became a regular theme from this point on, with the pursuers being constantly told that the problem with the roof was the fixings. He observed (at paragraph [11]) above) that it all seemed to come back to the fixings. In his letter dated 30 June 2004 to the second defenders, Mr Fasken contended that the latest roof leaks which occurred as a result of 48 hours wind and rain conditions on 23 and 24 June were sufficient proof in themselves that the building was (and never had been) "wind and watertight" and that some of the leaks went back to the time of the original construction. In the following month Mr Fasken referred to "the major issue of the storm damage and substandard roof which we classify as a latent defect". In January 2004 there were widespread problems of ponding and water ingress in areas of the roof which were far away from the storm damage. On 6 January 2004 Mr Johnstone prepared the memo which is quoted at paragraph [10] above which narrated the pursuers' concern about the history of sheeting problems, renewal of fixings and many instances of roof leaks scattered throughout the roof areas, with the suggestion that the pursuers consider the only solution may be to re-roof completely. Although Mr Fasken did not remember a discussion with Mr Johnstone regarding complete re-roofing, and while I accept that Mr Fasken may have "ranted" at Mr Johnstone when he was under great pressure, this does tend to support the view that there was a concurrence of damnum and iniuria at about this time, with widespread roof leaks against a background of longstanding water ingress problems in the roof. By October 2004 Mr Croan was considering what should happen "if there is a systemic problem with PFSL's roof, as we suspect".

[104] It is of course the case that Mr Johnstone referred in his e-mail dated 13 June 2005 to a problem with roof corrosion as being "a new problem", and Mr Fasken stated that this was the start of the problem which led to the wholesale failure of the roof. However, it is far from clear to me on the basis of the evidence led that this was truly a distinct and discrete defect, nor that it was related to a distinct and separate default. Mr Fasken accepted in cross-examination (at paragraph [24]) above, that the problems with fixings still formed part of the basis of the pursuers' case, that insufficiency and inadequacy of fixings remained an integral part of it, and that paragraph 1.5.1 of Mr Fergusson's report (No 43 of process) formed a central part of the pursuers' case. I have of course not heard any expert evidence in relation to this report, but on the face of it the passage referred to appears to suggest that there is a connection between the inadequacy and insufficiency of fixings and the corrosion of the roof panels.

[105] In summary, having regard both to the pursuers' pleadings and to the evidence, and adopting a pragmatic approach, I have reached the view that there was a concurrence of relevant damnum and iniuria by early January 2004. By that time there was widespread water ingress across a variety of locations over the roof of the premises, some of which were removed from and not attributable to the area of storm damage which arose on Hogmanay 2003. The loss and damage sustained was material. The alleged defaults are substantially the same as those defaults relied on in the present action. Already by that time inadequacies and insufficiencies of fixings were being considered as a cause of the problems. Albeit that panel corrosion was not evident at that time, it appears that inadequacies or insufficiencies of fixings may have contributed to this corrosion. Certainly such a view is consistent with the evidence which I heard and with the pursuers' pleadings, and I heard no technical evidence to the contrary effect. On the basis of the pleadings and the evidence, to use the analogy advanced on behalf of the defenders, the panel corrosion may be equiparated to the development of osteoarthritis many years after the fracture of the leg. I am unable to conclude that this panel corrosion is truly distinct and discrete from what had gone before. I am therefore forced to the conclusion that the pursuers' right of action in this case was (subject to sections 11(3) and 6(4) of the 1973 Act) extinguished by the expiry of the short negative prescription in January 2004.

[106] There are two other subsidiary arguments advanced on behalf of the pursuers which are relevant at this stage. First, the pursuers made a submission to the effect that time only began to run against the defenders at some point after the issuing of the certificate of making good defects in June 2006. This submission is summarised at paragraph [42] above. The contrary argument for the first defenders is summarised at paragraph [54] above, and that for the second defenders is summarised at paragraph [65] above. Stated shortly, I consider that the arguments for each of the defenders on this point are sound, and preferable to those advanced on behalf of the pursuers. I reach this view for several reasons. First, I heard no evidence that the parties proceeded on the basis that the initial defects liability period had been extended beyond the period of 12 months following practical completion. Neither Mr Fasken nor Mr Duthie stated that this was their understanding of the position, and this is not an inescapable inference from the documentary productions. In doing what they did (or in failing to do what they ought to have done) it does not appear to me that parties had the formalities of the contractual framework governing their responsibilities at the front of their minds. Problems kept on arising, and steps were taken to attempt to deal with them. Some of these steps were more successful than others, but I do not consider that it necessarily follows from the fact that steps were taken that the parties had agreed that the defects liability period had been extended. Second, even if I am wrong in this view, the pursuers have not chosen to sue the defenders in respect of failures to obtemper their defects liability obligations, and I do not consider that the pursuers' pleadings entitle them to advance such a claim. Third, the pursuers' position is not supported by authority - see Hudson on Building and Engineering Contracts (11^th Ed) at 5-027 and 5-053. Fourth, in any event, this argument cannot avail the pursuers against the second defenders, (a) because the delaying of actionability arising from the defects liability period is a matter between the pursuers and their contractors, ie the first defenders, and not the second defenders, and (b) because consequential damage arose in January 2004, and the possibility that the roof damage might be put right by the first defenders or the warrantors does not stop the prescriptive period from running against the second defenders.

[107] The second subsidiary argument for the pursuers is summarised at paragraph [38] above, and in paragraph [85] of the pursuers' written submissions, to the effect that although the initial design was carried out outwith the prescriptive period, the second defenders were under a continuing duty to check that their design would work in practice and to correct any errors which might emerge, or that they were obliged "to see the business through". The contrary argument for the second defenders is summarised at paragraph [64] above. Whilst it may be the case that the pursuers would have been entitled to plead such a case against the second defenders, they have not done so. I agree with counsel for the second defenders that there are no averments of breach of obligations by the second defenders which postdate the certificate of practical completion. The averments directed against the second defenders in article 7 of Condescendence allege various failures of design, specification and supervision during the construction period, but I can find no averments of a continuing duty to monitor and put right the matters complained of on record until a period after 4 February 2004. It is of course the case that the second defenders continued to act on behalf of the pursuers after that date, but there is no averment in the pursuers' pleadings of any failure in the fulfilment of an obligation incumbent on the second defenders after that date which has given rise to loss and damage. For this reason I prefer the submission for the second defenders on this point to that for the pursuers.

[108] For all of these reasons I have reached the conclusion that, by reason of sections 6(1) and 11(1) of the 1973 Act (and subject to sections 6(4) and 11(3), which I consider below) the obligation of each of the defenders to make reparation to the pursuers was extinguished by the short negative prescription before 4 February 2004.

Section 11(3)of the 1973 Act.

[109] The pursuers' submissions on this point are summarised at paragraphs [39] to [41] above. They accept that the onus of proof rests with them in this regard, and the appropriate standard is that of the ordinary prudent building owner having regard to all the circumstances. It was submitted that there was no evidence that the pursuers were actually aware of leaks occurring prior to 2006 on anything other than a minor and localised basis; that the design of the building did not afford them any access to the external roof area; that the granting of a certificate of making good defects in June 2006 was inconsistent with extensive roof leaks; that Mr Fasken's awareness was different from the awareness of the pursuers, and Mr Fasken was very busy in January 2004; and that the preliminary Arch Henderson report did not link defaults to specific defects, and in particular there was no connection between the contents of that report and subsequent panel corrosion.

[110] I am not satisfied that the pursuers have discharged the onus of proof incumbent on them in terms of section 11(3) of the 1973 Act, and I prefer the submissions for the first and second defenders in this regard. It is not necessary, in order for time to begin running, for the pursuers to be aware of the precise detail of every aspect of damage, nor the precise extent of that damage. Once there is knowledge of material damage, this is sufficient. By 5 January 2004 the pursuers had actual awareness that damnum had occurred. Moreover, this was not simply minimal damage - it was clearly serious, and there were discussions about consequential loss and even the possibility of re-roofing. I do not accept the submission by counsel for the pursuers that there was no evidence that the pursuers were actually aware of leaks occurring prior to 2006 on anything other than a minor and localised basis - the evidence of Mr Fasken painted a picture of a roof that did not work, with an almost (but not quite) unbroken history of water ingress, and in particular in January 2004 significant water ingress in locations removed from the area of storm damage and not attributable to it. The fact that the certificate of making good defects was issued in June 2006 cannot remove the pursuers' awareness of material damage in January 2004. I consider that the pursuers have not demonstrated an absence of awareness of damnum before 4 February 2004.

[111] With regard to iniuria, I consider that at least by 27 January 2004, when they received the preliminary Arch Henderson report, the pursuers were aware, or could with reasonable diligence have become aware, that relevant loss or damage known to them was actionable, in the sense that a stateable prima facie claim in negligence or (breach of contract) could properly be advanced against someone. It is not necessary for the report to link defaults to specific defects any more than it is necessary for the report to explain or identify in minute detail the mechanism of defects. Certainty or even probability of success in a claim for damages is not required, nor is it necessary for the pursuers to be able to identify precisely whose default is responsible for which defect. The Arch Henderson report dated 27 January 2004 excluded exceptionally strong or unexpected weather conditions as a cause of the damage, and raised questions about the adequacy and sufficiency of fixings. The fact that the Arch Henderson report did not identify any problem of corrosion with roof panels which might require replacement of the roof is not relevant; in order to avail themselves of the provision of section 11(3) the pursuers must prove lack of any actual or constructive knowledge of there being a problem in the first place.

[112] I am not persuaded by the pursuers' argument that there is a distinction to be drawn between the awareness of Mr Fasken and the awareness of the pursuers themselves. Mr Fasken was the man in charge of the day-to-day running of the pursuers' operations, and on the evidence he was in almost daily contact with the directors of the pursuers. On the ordinary principles of agency I consider that if Mr Fasken was aware that there had been material damage to the roof and that this damage was actionable, in the sense that a stateable prima facie claim in negligence could properly be advanced against someone, that awareness attaches to the pursuers themselves. The fact that Mr Fasken (and indeed the pursuers generally) was extremely busy in the course of January 2004 dealing with the processing of large quantities of fish is not relevant to this question. Similarly, I consider that the fact that the pursuers themselves did not have easy (or even any) access to the external roof area is neither here nor there - having regard to the circumstances of the damage in January 2004, I consider that the ordinary prudent building owner would cause investigations to be made by experts, as indeed the pursuers did. It is not relevant that neither the directors of the pursuers nor Mr Fasken went onto the roof and carried out a visual inspection themselves.

[113] In conclusion on this point, I do not consider that the pursuers have succeeded in discharging the burden of proving that they were not aware, and could not with reasonable diligence have been aware, that loss, injury or damage caused by an act, neglect or default had occurred before 4 February 2004. The provisions of section 11(3) of the 1973 Act do not therefore avail them.

Section 6(4) of the 1973 Act.

[114] The pursuers make an esto case against the second defenders only, in terms of section 6(4) of the 1973 Act, the relevant provisions for the purposes of this argument being as follows:

"In the computation of a prescriptive period in relation to any obligation for the purposes of this section -

(a) any period during which by reason of - ...

(ii) error induced by words or conduct of the debtor or any person acting on his behalf, the creditor was induced to refrain from making a relevant claim in relation to the obligation ... shall not be reckoned as, or as part of, the prescriptive period;

Provided that any period such as is mentioned in paragraph (a) of this subsection shall not include any time occurring after the creditor could with reasonable diligence have discovered the ... error ... referred to in that paragraph."

[115] The first error advanced for the pursuers was an error as to the cause, nature and scope of the problems associated with the roof. If the pursuers had known that the roof required to be replaced, they would have raised proceedings against the defenders. However, the second defenders allowed the pursuers to let time pass while minor defects were made good in the roof, and a certificate of making good defects was issued in June 2006. This conduct by the second defenders was inconsistent with the roof having failed and requiring to be replaced.

[116] The tests which must be met in order for an argument under section 6(4) to be successful were set out by Lord Penrose (with whom the other two members of the court agreed) in Adams v Thorntons at paragraph [66]. In order to invoke error under section 6(4) a pursuer must establish (1) that he was in error as to the scope of his remedies and because of that error refrained from pursuing a claim against these particular defenders; (2) if he was in error, that the error was induced by these particular defenders; and (3) that the error could not have been discovered with reasonable diligence until a point in time after which the discovery was irrelevant to the running of prescription against him.

[117] I do not consider that the pursuers have met any of these tests. As already discussed, the pursuers have no ground of action against the second defenders regarding the failure to supervise the making good of defects, nor do they make any complaint about the issuing of the certificate of making good defects. Neither Mr Fasken nor Mr Duthie gave evidence to the effect that the pursuers were in error as to the scope of their remedies and because of that error refrained from pursuing a claim against the defenders. Neither gave evidence that any such error was induced by words or conduct of the second defenders, and I can find nothing in the documentary productions to indicate such words or conduct.

[118] The second error on which the pursuers rely related to the protection the pursuers enjoyed under the Rigidal warranty. The pursuers' submissions in this regard are summarised at paragraph [44] above. The second defenders' answer is summarised at paragraphs [75] and [76] above. I regard the second defenders' submissions as well-founded and as providing a complete answer to the section 6(4) argument in relation to the Rigidal warranty. The pursuers knew throughout that the warranty only covered materials, and not failures in design or installation; given the part played by inadequacies and insufficiencies of fixings, any error in this regard is irrelevant. Moreover, the warranty became worthless only because the company which granted it ceased to trade. This is not something which the pursuers aver that the second defenders should have guarded against, nor is there any averment that the second defenders were under a continuing obligation to monitor the financial circumstances of the warrantors. Even if the pursuers were under error as to the value or enforceability of the warranty, and if such error was induced by words or conduct of the second defenders, such error was not such as to induce the pursuers to refrain from making a relevant claim in relation to the obligation. The viability of any claim by the pursuers against the warrantors was res inter alios acta in a question between the pursuers and the second defenders. It was never suggested by the second defenders that Rigidal would pay for consequential damage or would have any liability for failures in design or installation.

[119] Although Mr Fasken and Mr Duthie both gave evidence that the reason that the pursuers did not raise the present action earlier was because they were relying on their remedies under the Rigidal warranty, I do not consider that this amounts to a relevant error for the purpose of section 6(4) of the Act such as would justify a period of postponement of the prescriptive period in relation to their claim against the second defenders.

Conclusion

[120] For the reasons given above I shall sustain the third plea-in-law for each of the first and second defenders and grant absolivitor.