Scottish Sheriff Court Decisions

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Cite as: [2004] ScotSC 85

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JUDGMENT OF SHERIFF PRINCIPAL EDWARD F BOWEN QC

in the cause

TONY BEAL LIMITED v ROBERT BOYD, T/A R BOYD ROOFING - A4707/03

Act: Mr Hutchison, Advocate, instructed by Mellicks

Alt: Hutchison, Solcitor, Hutchison & Co

GLASGOW, 22 December 2004.

The Sheriff Principal having resumed consideration of the cause, Refuses the appeal and adheres to the Sheriff's interlocutor complained of dated 7 June 2004; finds the defender and appellant liable to the pursuers and respondents in the expenses occasioned by the appeal and Remits the account thereof, when lodged, to the Auditor of Court to tax and to report thereon.

NOTE
[1]      This appeal raises a question of the adequacy of specification of averments of loss in an action of damages for breach of contract. It is common ground that the defender constructed a roof on the pursuers' premises and rendered an invoice for the work done on 19 September 2000 in the sum of £15,770.26. The pursuers settled the invoice with exception of a 10% retention. They maintain that shortly thereafter they became aware that the roof was defective. This, they say, was due to the defender's breach of implied contractual duties. There is no challenge to the relevancy of their averments in that respect. In the present action they seek damages of £14,803.36.
[2]      The constitution of this sum is to be found in Article 4 of Condescendence. The pursuers refer to a report by a roofing consultant, Keith Kendal, and say:

"As reported by Keith Kendal the extent of work needed to correct and reinstate the work carried out by the defender was so great that re-roofing the premises was more cost effective in securing a wind and watertight roof".

They go on to aver that they "require to instruct competent contractors to attend to the necessary repairs, restoration and replacement of inadequate materials, and thereby incurred a sum due to Archibald McCorquodale & Son Ltd, building contractors, of £12,684.13. They re-roofed the premises at a cost of £10,795 plus VAT thereon of £118.13". The second head of claim relates to consultancy fees and subsequent supervision of the works carried out by Mr Kendal "in the total sum of £1,633.26". The pursuers thereafter make averments that it was reasonably foreseeable that the existence of defects would require both investigation and supervision of the remedial works. Invoices from Keith Kendal are produced and referred to for their terms and incorporated into the pleadings brevitatis causa. Finally, the pursuers aver:

"As a consequence of the incursion of water due to the defender's defective work to the roof prior to Archibald McCorquodale & Son Ltd rendering the premises properly wind and watertight the pursuers suffered loss in respect of destruction to stored rope totalling £485.97 in value".

They say that the premises were known by the defender to be used by them for storage.
[3]      These averments were attacked at debate as essentially lacking in specification to the extent that they should not be remitted to probation. It was contended on behalf of the defender that there was inadequate specification of roof repairs allegedly executed on the pursuers' instructions, inadequate specification of "materials used" and inadequate explanation of the basis on which the defender had any contractual liability for such losses. An attack was also made on the sufficiency of the averments relating to consultancy fees and indeed to the absence of any breakdown of the loss of £485.97 in relation to their rope. The learned Sheriff rejected these arguments and allowed a proof before answer. He dealt with the matter succinctly stating that he was satisfied that the pleadings, when read as a whole, disclosed a situation in which the defender had been given sufficient notice of the case he had to meet and failed to see why he was irrevocably prejudiced by the matter proceeding to proof on the averments as they stood.
[4]      The defender's solicitor contended that in adopting this approach the Sheriff erred in law. He commenced his submissions by referring to the opinion of the court in The Lord Advocate v Johnston 1985 SLT 533 (at p.534-5) as authority for the proposition that the object of pleadings was to give fair notice to the other side of the case which is being made and that it was "incumbent to give fair notice of any matter, the proof of which is necessary for the establishment of the case". In the present case he maintained that there was no proper basis specified on which the pursuers' claim was quantified: see Jamieson v Alan McNeill Son 1974 SLT (N) 9. As his submission developed, it became apparent that the defender had, in essence, two complaints relating to the first head of claim. These were (1) that there was no breakdown or explanation of Messrs McCorquodale's charges and (2) it was not clear whether the roof had in fact been replaced, or had merely been re-sheeted. The latter, said his solicitor, was the defender's suspicion. Mr Kendal's report (No 5/4 of process), he maintained, did not recommend re-roofing. Although it described that as a "more practical commonsense approach" read properly the report was urging caution in relation to remedial work. In a letter to the defender dated 22 August 2001 (No 5/5 of process) Mr Kendal had asked for consideration to be given to re-sheeting. Against that background there were insufficient averments that re-roofing was necessary. The defender's solicitor rejected any suggestion of obtaining further details by way of diligence. He referred to the case of Gemini Corrosion Services Ltd v Aberdeenshire Council (unreported, Sheriff Principal Sir S S T Young September 2003). That was a case which concerned the loss of four neoprene cones which had been negligently disposed of. The claim, of £6,500 per cone, was simply specified as a "reasonable non-profit charge by the contractual manufacturer". The averments of loss were held to be essentially lacking in specification. In the course of argument it was suggested that the defenders could apply to the court for a commission and diligence to recover documents, including plans and specifications which would tell them more than they had been told about the four cones. The Sheriff Principal said:

"But it may be asked why they should be expected to go to the trouble and expense of these uncertain procedures when the pursuers are admittedly in a position to say more in their pleadings about the four cones but have for some reason not disclosed to the court deliberately chosen not to do so".
[5]      In relation to the consultancy fees the solicitor for the defender observed that the total of £1,633.26 was supported by a series of invoices (Nos 9/1-9/II of process) which showed a breakdown of this figure. This, he maintained, still gave insufficient specification of the constitution of Mr Kendal's charges. Reference was made to the case of Semple Fraser v Quayle 2002 SLT (Sh.Ct.) 33. That was a claim for recovery of professional fees advanced by a firm of solicitors. They simply set out what the fee was and stated that it was "a reasonable fee for a commercial firm such as the pursuers in all the circumstances of the case given the importance of the matter to the defender". It was held that these averments did not give fair notice to the defender of how the pursuers' account was made up. Even if it was to be the subject of taxation the defender was entitled to a breakdown of how the pursuers arrived at the charge in order to consider whether he was going to incur the cost of taxation. In the present case there was no indication of Mr Kendal's chargeable rates, time spent, the form of reporting to the pursuers or the nature of documents which had been produced in the course of the consultancy. The defender, it was argued, could not prepare for proof on the basis of the information provided.
[6]      Lastly, an attack was made on the specification given in respect of the damage to rope. This was simply described as "stored rope" and although a very precise figure was given for its value there was no attempt to vouch this or indicate how it had been arrived at. In all these circumstances it was maintained that the sheriff ought to have sustained either the defender's general preliminary plea, or the specific plea relating to the averments of loss and dismissed the action.
[7]      In response counsel for the pursuers drew attention to the fact that Mr Kendal's report was incorporated into the pleadings and that there was a specific averment in the second sentence of Article 2 of condescendence that Mr Kendal had reported that the extent of work needed to correct and reinstate the work carried out by the defender "was so great that re-roofing the premises was more cost-effective in securing a wind and watertight roof". In addition to that the pursuers had set out at length the nature of the defects in their averments alleging breach of contract. In consequence there could not be any complaint on behalf of the defender about adequacy of notice in relation to the nature of the deficiencies and what was required to rectify them. This was far from being a case where the defender was in some doubt about the nature of the claim. The extent of his knowledge was demonstrated by the fact that in terms of the defences he made an offer to pay the pursuers the sum of £4,020 net of the retention, that is a gross payment of £5,597.03. It was not clear how this figure was arrived at but the precise nature of it demonstrated that the defender had his own view of what the rectification works might cost. Having regard to that position the defender was in effect admitting breach of contract, and if that was his position the onus of proving that the best way of remedying the breach was not taken lay with him: Gloag on Contract 2nd ed. p.689.
[8]      In relation to the charges for Mr Kendal's consultancy work there was a specific averment that these were reasonable charges. There was no element of surprise or lack of notice given that the defender was fully aware of the involvement of Mr Kendal and indeed appeared to have consulted his own expert. Lastly, it was contended that the degree of specification given in respect of damage to the rope was sufficient. The defender had an admission that it was within reasonable contemplation that items stored within the premises could be damaged by ingress of water but specifically averred that rope was not damaged as a result of such ingress. The issue between the parties was therefore one of whether rope was damaged at all.
[9]      Lastly, counsel for the pursuers contended that the sheriff was correct to allow a proof before answer a decision which he described as a proper exercise of discretion.

DECISION

[10]      In my judgment in a claim of this nature it is incumbent upon the pursuer to set out his losses in a form which gives the defender adequate notice of his claim whereby the defender will be able to investigate with a view to either refuting or accepting the validity of such losses. What constitutes "adequate notice" will vary from case to case and may very well depend on the extent of the defender's prior knowledge of the alleged loss. In some cases a defender may have very little knowledge of the type of loss his opponent has suffered, or of the steps necessary to remedy that loss. In other cases - and I perceive this to be one of them - he will have had an opportunity to inspect that which is said to be deficient and can form his own conclusion, partly based on expert or specialist knowledge, as to what is required by way of rectification. It is accordingly not possible to lay down any hard and fast rule as to what constitutes adequate specification of the type of claim being advanced in this case. What can be said is that it is not in the interests of economical and efficient justice to postulate a rule which requires detailed averments in every case.
[11]      Cases on specification of loss are normally decided on a basis which is particular to their own facts. That may very well be said of the case of Gemini Corrosion Services in which the missing cones were of a somewhat unusual character, and I do not read the Sheriff Principal's observations in that case as more than an expression of opinion that greater specification could and should have been given in the particular circumstances of it. It is certainly not my opinion that the pleadings in every case require to be of so detailed a nature as to obviate the need for recovery of further information by way of specification of documents. In the particular case of Mr Kendal's charges it seems to me that adequate notice of the constitution of this part of the claim is given by the averment relating to his total fee and the supporting series of invoices. That, together with the averment that Mr Kendal's charges were reasonable, is sufficient for proof. The defender may have his own view as to whether these charges are reasonable; if he is in some doubt I see no reason why he should not investigate the matter in greater depth by the appropriate form of commission and diligence, but it is for him to decide whether, in the context of this litigation, such an expense would be justified.
[12]      In relation to the averments relating to the work required on the roof, which form the bulk of the pursuers' claim, it appears to me to be quite clear on the pursuers' pleadings that what is contended is that "re-roofing" was necessary and indeed was carried out. That view is sufficient for disposal of the second ground of criticism of the averments in this area of the case. If it be the suggestion that only re-sheeting was necessary that seems to me to be a line which ought to be taken by the defender upon the basis of the passage founded upon in Gloag on Contract. If it transpires that only re-sheeting was carried out that could conceivably cause difficulties from the point of view of the pursuers, but that is essentially a matter for proof. In relation to the first point, namely that there is no breakdown or explanation of McCorquodale's charges that, I consider, to be a matter for evidence. There is sufficient notice of what the pursuers' case is. Whether there is sufficient evidence to support that case is again a matter for proof. If the defender wishes further details at this stage again there is no reason why there should not be resort to commission and diligence.
[13]      Finally, in respect of the claim for their rope in my view an averment that rope "totalling £485.97 in value" is not so lacking in specification as to be irrelevant. Obviously there would require to be something to vouch that value and without it the pursuers' claim would in all probability fail. Again I consider that to be a sufficient averment to proceed to enquiry.
[14]      As I have indicated counsel for the pursuers maintained that the decision to allow a proof on these averments was a matter for the sheriff's discretion. I am not sure that I agree with that proposition and I prefer to view the matter as an exercise of judgment in which there requires to be a degree of latitude given that one is dealing with the concept of what constitutes "fair notice". Be that as it may I am satisfied that in this case there was no error on the part of the sheriff in sending the whole matter to a proof before answer and in consequence the appeal is refused.