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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Milne & Anor v William Cowie Partnership & Ors [2000] ScotCS 153 (9 June 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/153.html Cite as: [2000] ScotCS 153 |
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OUTER HOUSE, COURT OF SESSION |
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OPINION OF LADY PATON in the cause DONALD STEWART MILNE AND MRS FIONA VIVIENNE MILNE Pursuer; against THE WILLIAM COWIE PARTNERSHIP AND OTHERS Defenders:
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Pursuer: Keen Q.C.; Balfour & Manson
Defenders: D. Davidson, Advocate; Simpson & Marwick W.S.
9 June 2000
[1] In this action the pursuers sue a firm of architects, alleging breach of contract and negligence.
Motion to amend
[2] At a motion roll hearing, the pursuers sought to have the Closed Record opened up and amended in terms of a Minute of Amendment no. 15 and Answers no. 16 of process. The defenders opposed some parts of the amendment, namely paragraph 4 and the first sentences of paragraphs 6 and 7 of the Minute of Amendment. In other words, they opposed amendment insofar as the pursuers sought to introduce the following averments:
[3] Firstly, at the end of Article 5 of Condescendence:
"With reference to the defenders' averments in answer admitted that instructions were given to contractors to carry out certain remedial works. Quoad ultra denied. Explained and averred that the failure of the drainage and sewage system was not a snagging item. The failure of the drainage and sewage system was caused by the defenders not having taken account of the design requirements of the specified house on the particular site upon which it was to be built. In carrying out their design the defenders had not determined the seasonal water table variations on the site. They did not specify the required dimensions of the soakaways or the required capacity of the septic tank. They did not provide details of the manhole soakaway and septic tank constructions. They did not provide necessary levels for both the foul and surface water drainage. During their site inspections they failed to note that the drainage was being installed to incorrect gradients and that the soakaways would not function bearing in mind the water table problems which were apparent during the building construction period. Such failures necessitated extensive remedial works which were not snagging items as averred by the defenders."
[4] Secondly, at the end of Article 7 of Condescendence:
"In particular no reasonably competent and diligent architect would have failed to provide for the drainage and sewage system of the house as hereinbefore condescended on."
[5] Thirdly, at the end of Article 9 of Condescendence:
"In particular no reasonably competent and diligent architect would have failed to provide for the drainage and sewage system of the house as hereinbefore condescended on."
Opposition based on prescription: section 6 of the Prescription and Limitation (Scotland) Act 1973
[6] The basis of the defenders' opposition was prescription, as stated in the plea-in-law contained in their Answers:
"Any obligations incumbent upon the defenders anent the sewage and drainage system having prescribed, the averments thereanent should not be admitted onto Record."
[7] Counsel for the defenders contended that the pursuers were attempting to introduce a wholly new obligation which had been extinguished by prescription in terms of section 6 of the Prescription and Limitation (Scotland) Act 1973. The defenders had carried out the work during the period 1989 to 1991. By 1991 the defects complained of by the pursuers had appeared and were known to the pursuers. Accordingly the terminus a quo for the quinquennium was 1991. The pursuers' summons was served on the defenders in May 1995, which, it was accepted, was well within the quinquennium. The record closed on 19 March 1997. The Minute of Amendment no. 15 of process was received towards the end of 1999. It contained the averments quoted above, which sought to add a new case based on an entirely new obligation. Counsel referred to Johnston, Prescription and Limitation, para. 20.21; N.V. Devos Gebroeder v Sunderland Sportswear Ltd., 1990 S.C. 291; J.G. Martin Plant Hire Ltd. v Bannatyne, Kirkwood, France & Co., 1996 S.C. 105; G.A. Estates Ltd. v Caviapen Trs. Ltd., 1993 S.L.T. 1051; and Classic House Developments Ltd. v G.D. Lodge & Partners (Lord Macfadyen, 30 January 1998). Counsel also referred to an Opinion of Lord Philip dated 5 February 1999 in connection with an earlier Minute of Amendment by the pursuers in this process. That attempted amendment had been refused.
[8] Counsel for the pursuers submitted that the averments under attack did not seek to add a new obligation. The case was founded upon a contract between the parties, whereby the defenders had undertaken duties of design and supervision in connection with the construction of a dwellinghouse, including inter alia a heated swimming pool, a conservatory, and air conditioning, all as set out in Article 2 of Condescendence. In Article 4 of Condescendence it was averred that the defenders
"failed to provide to the contractors and sub-contractors sufficient and adequate drawings to enable work to progress. They failed to co-ordinate and plan the work of the various trades and contractors. They failed properly to supervise the works. In so failing they were in breach of their contract with the pursuers."
In Article 5 of Condescendence it was averred that defects became apparent.
"In particular, water from the swimming pool leaked into the surrounding ground. As a result the swimming pool could not be heated to an adequate temperature. The drainage and sewage system failed."
In Article 7 of Condescendence it was averred that
"In the circumstances condescended upon the defenders were in breach of their contract with the pursuers. It was an implied condition of their contract that they would exercise a reasonable degree of skill and care in carrying out the pursuers' instructions. They knew or ought to have known that in the event of their failure to pay due attention to the design requirements of such a house on such a site; to provide sufficient and adequate plans and drawings to enable work to progress satisfactorily; to co-ordinate the works of the various contractors and sub-contractors, and to properly supervise said works, that [delays and defects] would occur ... In these circumstances no reasonably competent and diligent architect would have failed to pay due attention to the design requirements of such a house; to provide sufficient and adequate plans and drawings and to co-ordinate the works; to supervise the works."
In Article 9 of Condescendence it was averred that the pursuers' loss injury and damage was
"caused by a breach of the defenders' duty of care to the pursuer. It was their duty to exercise a reasonable degree of skill and care in carrying out the pursuers' instructions. They knew or ought to have known that the pursuers intended to spend considerable sums of money on the construction of said house, and that he [sic] wished it to be of a high standard, and a high value, commensurate with the cost thereof. They knew or ought to have known that in the event of their failure to pay due attention to the design requirements of such a house on such a site; to provide sufficient and adequate plans and drawings to enable work to progress satisfactorily; to co-ordinate the works of the various contractors and sub-contractors, and properly to supervise said works, that delays in the completion of the construction of said house would occur; that design defects would be present; that defects in the construction would occur; that substantial reconstruction and remedial works would become necessary. They knew that in the event of such remedial works being necessary, the pursuers [would suffer certain losses and inconvenience]. In these circumstances no reasonably competent and diligent architect would have failed to pay due attention to the design requirements of such a house; to provide sufficient and adequate plans and drawings and to co-ordinate the works; to supervise the works. In these circumstances the sum concluded for is a reasonable estimate of the pursuers' loss and damage."
Finally, the pursuers' first plea-in-law was in the following terms:
"The defenders being in breach of their contract with the pursuers et separatim in breach of their duty of care, and the pursuers having suffered loss, injury and damage thereby the defenders are liable jointly and severally to make reparation to them therefor".
[9] Against that background, counsel contended that, so long as an action to enforce the obligation was in court, a "relevant claim" had been made for the purposes of section 6 of the 1973 Act. The averments sought to be added by the Minute of Amendment were not averments relating to a wholly new obligation: rather they were averments relating to the obligation on the basis of which the action had been raised, namely the contract between the parties. Reference was made to Kinnaird v Donaldson, 1992 S.C.L.R. 694, and in particular to passages at pp.698-699 and 702-703, where the court quoted with approval the dicta of Lord President Hope in N.V. Devos Gebroeder v Sunderland Sportswear Ltd., cit. sup.
("All that is needed ... is sufficient notice to the debtor so that he is aware of the nature of the claim which is to be pursued. A practical rather than a technical approach to this matter is required ...") and continued:
" ... the correct approach of the court is to be found in the observations of the Lord President in N.V. Devos Gebroeder, which are quoted above. In taking a practical rather than a technical approach to this matter we also have in mind the decision in Bank of Scotland v W. & G Fergusson where it was essential for the court to examine the articles of condescendence in order to discover the true character of the claim. In our view, there can be no room for doubt that in order to ascertain whether or not the claim which has in fact been made is a relevant claim, it is legitimate and appropriate to look not only at the crave or conclusion and plea-in-law but to look at the whole of the writ or summons, including the articles of condescendence. It is abundantly plain that a relevant claim may be made not only in a conclusion or crave but also in defences when the claim is advanced by way of set-off or compensation. It is clear in the present case that there were contradictions between the crave and the pleas on the one hand, and the averments in the statement of facts on the other, but it has always been recognised that such matters are capable of alteration by amendment. We need do no more than refer back to the decision in British Railways Board v Strathclyde R.C. and in the same case when it reached the Inner House. It is not the form of the writ that is important. It is the substance that is important. The court must look to see whether or not the proceedings taken clearly intimate to the defender that the obligation in question is being founded upon. ..."
[10] Counsel for the pursuers further contended that, even if one were to regard the defenders as having had two separate obligations, one of design, and one of supervision, there were in the Closed Record clear averments relating to both design and supervision. No new obligation was introduced.
Conclusion
[11] I consider that the pursuers' existing pleadings give sufficient notice of a complaint about breach of the defenders' duties arising from the parties' contract and relating to design and supervision in respect drainage and sewage. Accordingly a relevant claim in respect of these matters was timeously made. The averments referred to in paragraphs 4, 6 and 7 of Minute of Amendment no. 15 of process merely develop or restate aspects of the contractual obligations relating to drainage and sewage already averred on record. The new averments do not in my view represent an attempt to introduce a wholly new obligation.
[12] I am satisfied that the amendment sought would assist in determining the real question in controversy between the parties. I am also of the view that the earlier Minute of Amendment referred to by counsel for the defenders proposed a very different type of amendment, in that it sought to delete wholesale all averments describing the contract, and to substitute averments apparently relating to a different contract. What would be an appropriate disposal for the earlier Minute of Amendment may not necessarily be the same for the present Minute of Amendment.
[13] While the delay in adding the averments to the record is unsatisfactory, certain reasons underlying that delay were explained in the course of the debate. In all the circumstances I have reached the view that the pursuers should be permitted to make the amendment they seek. Accordingly I repel the defenders' plea-in-law directed to prescription contained in their Answers no. 16 of process. I allow the Closed Record to be opened up and amended in terms of Minute of Amendment no. 15 of process in its entirety, together with Answers no. 16 of process. I reserve meantime the question of expenses pending submissions by the parties.