European & International Investments Inc v McLaren Building Services Ltd & Anor [2001] ScotCS 67 (21 March 2001)

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[1] The pursuers aver that they are, and at all material times were, the heritable proprietors of subjects known as Lee Castle, Lanarkshire. On or about 27 October 1987 they entered into a contract with the first defenders for the carrying out in part of those subjects of building works, including the construction of a swimming pool, sauna and games room. The form of building contract used was the Scottish Minor Works Contract 1986 Edition (April 1987 Revision). Work commenced on or about 12 October 1987. Practical completion, they aver, was effected by 29 January 1988 and the Certificate of Practical Completion issued on 24 March 1988.

[2] The first defenders engaged the second defenders as domestic sub-contractors with responsibility for the installation of the sauna, including electrical works related thereto. On or about 7 June 1988 a fire was discovered in the subjects. The pursuers aver that it was ignited as a consequence of the defective installation by the second defenders of the sauna heater, in particular by the use of an inappropriate form of cable for connection to the electricity supply.

[3] As a result of that fire very substantial damage, the pursuers aver, was caused to the subjects. For their losses, including the costs of emergency works and of restoration works, the pursuers seek reparation jointly and severally from the defenders, the first defenders being sued on the basis of breach of and indemnity under the contract and the second defenders on the basis of negligence at common law.

[4] After a long procedural history the case came before me for a procedure roll discussion. It did so on the motion of the first defenders who seek dismissal of the action in so far as directed against them. The second defenders, who are content that the action in so far as directed against them proceed to proof before answer, took no part in the discussion.

[5] The pursuers rely, as against the first defenders, on two clauses of the building contract, namely, clauses 1.1 and 8.2. These, in so far as material, are in the following terms:-

The sum claimed under the first conclusion of the summons (about £1.3m with interest) is for loss and damage allegedly sustained by reason of breach of clause 1.1. The marginally lesser sum (about £1.14m with interest) alternatively claimed under conclusion 2 is by way of indemnity under clause 8.2 for the same loss and damage under exception, however, of that by reason of injury or damage to the Works. Accordingly, by far the largest element in the claim relates to damage occasioned to property other than the Works.

[7] The principal issue discussed before me was whether or not, on a sound construction of the contract conditions, the Employer (the pursuers) had under clause 8.3B undertaken to insure against loss or damage of the kind referred to therein so as to include any such loss or damage as might be caused by the negligence of the Contractor (the first defenders) or of any person, such as the second defenders, for the consequences of whose negligence the Contractor was in law responsible. It was accepted by the pursuers that the loss and damage for which in this action they sought reparation from the first defenders was loss or damage to the existing structures and to other property of the kind referred to in clause 8.3B - including, under the first conclusion, loss or damage to the Works. It was also accepted that that loss and damage had arisen by the occurrence of a peril, namely, fire, specified in that clause. It was accepted on both hands that it was immaterial what insurance, if any, the pursuers had actually effected. The pursuers contended that they were not contractually obliged by virtue of clause 8.3B to insure for the consequences of the negligence of the defenders or their sub-contractors. The first defenders contended that the pursuers were so obliged and that, the losses claimed falling within the ambit of clause 8.3B, the pursuers' action in so far as directed against them was irrelevant.

[8] Mr Summers, junior counsel for the first defenders, opened by drawing particular attention to the fact that the insurance which the Employer was obliged under clause 8.3B to take out was "in the joint names" of Employer and Contractor. Under such insurance the insurer, having paid out to an "innocent" party, would, on principles of circuity of action, not usually be entitled to exercise a right of subrogation to recover against a "guilty" co-insured (MacGillivray on Insurance Law (9^th Edition) paras.22-97/99). The same principle applied to joint names insurance covering landlords and tenants (Ross and McKichan - Drafting and Negotiating Commercial Leases in Scotland (2^nd Edition) para.10.4). Two cases (National Trust v Haden Young Ltd [1994] 72 BLR 1; Barking & Dagenham L.B.C. v Stamford Asphalt Co Ltd [1997] 82 BLR 25), both decided in the Court of Appeal under the equivalent English form of building contract, were against the first defenders' contention. But these were not wholly consistent with each other and the reasoning on which the decisions were based was less than satisfactory. They were inconsistent with the established commercial meaning and effect of "joint names" insurance - in particular how that concept had been perceived in Notes of Guidance issued with the relative building contract forms and how the concept had been explained in standard textbooks on construction law. The perils listed in clause 8.3B were such, if they occurred, as to risk bringing the contract works to a halt if there were no funds available to allow them to proceed; the insurance provision was designed to make such funds available whether or not there was fault on the part of either party. The 1986 Edition of the Scottish Minor Works Contract had been issued prior to the decision in S.S.H.A. v Wimpey Construction (U.K.) Ltd 1986 SC (HL) 57 being advised. That case was concerned with the 1980 J.C.T. form of contract. Following the advising the wording of the relative insurance clause had been altered but only to amplify the provisions, not to make any change of principle (see J.C.T. Practice Note 22, reproduced in Walker-Smith on the Standard Forms of Building Contract (Knights Looseleaf Library) , especially at p.A137). At about the same time the Scottish Committee of the J.C.T. (which was represented on the U K body) had issued, without commentary, the April 1987 revised edition of the Scottish Minor Works Contract, which included the same amplified wording. Contemporaneously the English Minor Building Works Contract had been revised to the same effect (clause 6 of that contract). When further textual amendments had been made to the (English) Minor Building Works Contract in 1994 the relative Guidance Note issued with the amendments (Amendment MW8:1994) had indicated that the changes were in the nature of clarification and that "joint names insurance excludes any right of a joint insured to claim against the other joint insured in respect of any alleged negligence". Such guidance was helpful (as coming from the body which had devised the clauses) and was consistent with the approach of the textbook writers to joint names insurance. Reference was made to Hudson's Building and Engineering Contracts (11^th Edition) paras.15-002, 15-004, 15-007 and 15-013 to -015, Keating on Building Contracts (6^th Edition) pp.605-8, Connolly - Construction Law paras.4.195-8 and 4.203 and Emden's Construction Law IV paras.[611], [621], [663], [691], [691.1], [692.2] and [722] The circumstance that loss had been caused by the negligence of an insured (or of a person for whom he was responsible) did not exempt the insurer from liability (Ivamy - General Principles of Insurance Law (6^th Edition) p.287). The ap

[9] Mr McLean, junior counsel for the pursuers, moved that the whole case be sent to proof before answer. On a sound construction of the contractual provisions read as a whole, the purpose of clause 8.3B was to provide insurance against events (such as fire caused by vandalism, flood etc) which had occurred without negligence or other fault on the part of the Contractor. Where damage had been caused by the Contractor's fault, then (except in so far as concerned injury or damage to the Works) the Contractor was obliged to indemnify the Employer under clause 8.2. Under that clause he also had to take out and maintain insurance in respect of such loss; under clause 8.4 he had to produce evidence that insurance had been so effected. In so far as concerned the Works themselves, the Contractor had under clause 1.1 to complete the Works (including redoing any Works damaged or destroyed by his fault). He might chose to have separate (extra-contractual) insurance to protect him against the latter risk. Where the scope of the Contractor's obligation to insure (as under clause 8.2) was to be qualified, that was done by express words (James Archdale & Co Ltd v Comservices Ltd [1954] 1 WLR 459; S.S.H.A. v Wimpey Construction (U.K.) Ltd; Dorset C.C. v Southern Felt Roofing Co Ltd [1989] 48 BLR 96; National Trust v Haden Young Ltd (at first instance) [1993] 66 BLR 88, the reasoning of Otton J. having been accepted by the Court of Appeal in Barking & Dagenham L.B.C. v Stamford Asphalt Co Ltd). The reasoning of the Court of Appeal in the last- mentioned case was adopted. The construction of an identically worded standard form provision having been established by that decision, this Court should be slow to disturb it (Lewison - The Interpretation of Contracts (2^nd edition) para.3.06). In relation to a construction of clause 8.3B which did not include cover for the Contractor against the consequences of his own negligence, reference was made to McBryde - Contract paras.13-34 to -35 and 13-39 to -41 and Mars Pension Trustees Ltd v County Properties and Developments Ltd 1999 SC 267, especially per Lord Prosser at pp.269-72. The J.C.T. material was not helpful. At best it was unclear; regard could not be had to it unless the first defenders were prepared to aver and prove such material as a factual matrix (for which they had no averments). It could not constitute a legitimate aid to construction. As to the textbooks, Hudson made no reference to National Trust v Haden Young Ltd. Certain passages in it could not stand with Barking & Dagenham L.B.C. v Stamford Asphalt Co Ltd. Keating and Connolly did not advance matters. Emden illustrated that a provision for "joint names" insurance did not exclude subrogation in all circumstances. Reference was also made to Ivamy - pp.291-2. A joint names policy had various advantages, including the avoidance of possible conflict between separate insurers, the prospect of a lower premium and control over the deployment of insurance monies. In each set of contractual conditions it was necessary to examine the particular words used. Here the insurance provisions in clauses 8.2 and 8.3B were free standing. The pursuers were not disentitled by clause 8.3B from recovering from the first defenders. The argument advanced had, in any event, not been focused in the first defenders' pleadings.

[10] Mr McNeill, senior counsel for the first defenders, submitted that the first defenders' contention was properly before the Court. It was an issue of construction arising out of the contractual provisions on which the pursuers relied and, if well founded, was a complete answer to their case. The line of argument had been intimated in the first defenders' Note of Argument (as it had been in earlier such Notes). It was not suggested by the first defenders that the J.C.T. Practice Notes should be treated as a factual matrix (whether on the basis that they were so much in the public domain that knowledge of them should be attributed to the parties or on any other basis) but they did express views on the purpose of the provisions held by persons closely involved with the framing of them and untainted by any partisanship. It was right that they should be placed before the Court. They were at least as relevant as any discussion in textbooks or in any other sources of non-binding opinion. The essential issue was whether the insurance cover contemplated by clause 8.3B was one which excluded loss or damage caused by Contractor's negligence. Unless it did so, the insurer under the envisaged insurance could not by subrogation or otherwise recover from the Contractor since the latter was a party insured against the relative hazard; nor, unless such exclusion was contemplated, could the Employer, having contracted to effect such insurance, recover from the Contractor. Clause 8.3B did not, either expressly or by necessary implication, contemplate such exclusion. It was to be expected that both the Employer and the Contractor would wish there to be in place insurance of the specified property against the specified perils, whether or not the loss was caused by the negligence of either; loss could arise from, among other causes, negligence on the part of employees or agents of the Employer visiting the site. On the pursuers' construction there would be no contractually required insurance for loss or damage to the Works. This would leave an Employer seriously exposed if the Works were damaged or destroyed by the Contractor's negligence but the Contractor had no (voluntary) insurance and was not itself able to finance the rebuilding. S.S.H.A. v Wimpey Construction (U.K.) Ltd contemplated cover being taken out under a building contract against one's own negligence. Slade L.J.'s analysis in Dorset C.C. v Southern Felt Roofing Ltd at pp.105-6 involved an unsound attempt to apply the euisdem generis rule where no general words were used. Auld L.J. had fallen into a similar error in Barking & Dagenham L.B.C. v Stamford Asphalt Co Ltd at p.36. The joint names policy provided for in the contract conditions discussed in British Telecom plc v James Thomson & Son Ltd had, as here, no exclusion of Contractor's negligence. The present issue being concerned with insurance provision, the principles of construction referred to in Smith v UMB Chrysler (Scotland) Ltd 1978 SC (HL) 1 and Mars Pension Trustees v Country Properties and Developments Ltd were irrelevant. It being accepted that double insurance was not contemplated, it followed on the first defenders' construction that the insurance required under clause 8.2 would not need to cover the subject matter and perils to be insured under clause 8.3B. The first defenders' argument would be the same even if clause 8.3B had not contained the phrase "in the joint names of Employer and Contractor" but the presence of that phrase fortified their position. There was nothing in the textbooks to suggest that particular wording in a joint names policy was necessary to avoid subrogation. Reference was made to Ross and McKichan at para.10.4 and MacGillivray at paras.22-97/99. It was common sense that, when the parties had interests in the sam

[11] Mr Campbell, senior counsel for the pursuers, submitted that the first defenders' argument could not succeed unless the only type of policy which could satisfy clause 8.3B was one which covered negligence on the part of the Contractor. The pursuers' position was that a policy which did not cover such negligence would satisfy that clause. The first defenders had no averments which, if proved, would exclude the possibility of joint names insurance cover being available which did not cover Contractor's negligence. Nor did they have averments of any industry practice to the effect that a joint names policy under this clause invariably covered such negligence. Reference was made to Barking & Dagenham L.B.C. v Stamford Asphalt Co Ltd, per Auld L.J. at p.36F and Emden at paras.[685] - [690], [691], [722] and [723]. Co-insured might be covered under the same policy for different interests. The first defenders' argument involved an implicit cutting down not only of their insurance obligation under clause 8.2 but also of their liability and their obligation of indemnity under the earlier part of the same clause. It would entail that, although fire caused by negligence of the Contractor was a major risk and thus likely to be a major component in any premium, the Contractor had no obligation under clause 8.2 to insure against it, the burden being on the Employer to do so under clause 8.3B. The invocation of the euisdem generis rule was appropriate. Reference was also made to Evans v Glasgow District Council 1979 SLT 270, per Lord President Emslie at pp.273-4 and Dorset C.C. v Southern Felt Roofing Co Ltd, per Slade L.J. at p.106. There was no case in which liability on the part of the Contractor under a clause such as clause 8.2 had been held to have been restricted except where there was an express qualification in the clause. A proof before answer should be allowed.

[12] The principal issue raised by the first defenders is essentially one of relevancy turning on interpretation of undisputed contractual provisions. Fair notice of the argument in support of it has been given in their Note of Argument. It does not require to be focused in their pleadings. It is, in my view, properly before the Court for discussion and determination.

[13] As the issue is one of interpretation of contractual provisions, the primary task for this Court is one of construction of the words used in any relevant factual matrix. These words, however, appear in a standard form of contract in general use in the building industry in Scotland. A standard form in essentially identical terms is in use in the building industry in England and has been the subject of interpretation there by the Court of Appeal. Although the ratios of the decisions in the two most pertinent decisions are not binding on me, it would, in my view, be unfortunate if different conclusions were reached in the two jurisdictions on the interpretation of standard form contracts in identical terms in use in the same industry. I would be slow to bring that about unless persuaded that there were serious flaws in the analysis underlying those prior decisions.

[14] It is true that the reasoning underlying the decision in National Trust v Haden Young Ltd is not in all respects identical with that underlying the decision in Barking & Dagenham L.B.C. v Stamford Asphalt Co Ltd. However, the latter, which essentially followed the reasoning of the judge of first instance in the former, represents the current rationale for the conclusion that a clause in terms such as that in clause 8.3B of the Scottish form does not require insurance to cover Contractor's negligence. It was also the reasoning urged on me by the pursuers in this case. I accordingly first address the criticisms which the first defenders' counsel made of that approach, having noted that clause 8 (including clauses 8.2, 8.3A, 8.3B and 8.4) of the Scottish Minor Building Works Contract is, apart from language reflecting differences in property law, in identical terms to clause 6 (including clauses 6.2, 6.3A, 6.3B and 6.4) of the English form discussed in the two cases in the Court of Appeal.

[15] Mr Summers criticised the approach primarily on the basis that there had been no consideration of the significance of the insurance required by clause 6.3B being one in joint names. There was, he argued, a failure to recognise that the interpretation favoured by the Court was inconsistent with the established commercial meaning and effect of such insurance as explained in the Notes of Guidance and discussed in standard textbooks. He also criticised Auld L.J.'s analysis (at pp.30I-31C and pp.36G-37D) of the perils specified in clause 6.3B as being mostly "Acts of God". Mr McNeill laid less emphasis on the "joint names" point (indicating that the first defenders' argument would have been the same even if that expression had not been included) but reiterated criticism of the analysis of the perils discussed first by Slade L.J. in Dorset C.C. v Southern Felt Roofing Co Ltd and adopted by Auld L.J. in Barking & Dagenham L.B.C. v Stamford Asphalt Co Ltd..

[16] In my view the criticism of the analysis of the specified perils is unsound. It was described in argument as a misuse of the euisdem generis canon of construction on the basis that that canon was properly directed to a phrase where particular words were followed by a general word, the scope of the latter being restricted by the preceding particulars. But neither Slade L.J. in Dorset C.C. v Southern Felt Roofing Co Ltd nor Auld L.J. in Barking & Dagenham L.B.C. v Stamford Asphalt Co Ltd refers to euisdem generis. Auld L.J. in the latter case at p.36G states -

Lightning, storm, tempest, earthquake, aircraft and other aerial devices or articles dropped therefrom and riot and civil commotion are all perils which it is virtually impossible to conceive would arise by reason of the negligence of either the Employer or the Contractor. Fire, explosion, flood and bursting or overflowing of water tanks, apparatus or pipes might arise with or without such negligence. In considering whether it was intended that the provision should cover such negligence it is, in my view, legitimate to notice that there is no content for negligence in the genesis of the majority of the collocated perils. While not conclusive, it is a pointer towards an intention that the insurance under this clause was to cover only perils arising without negligence on the part of Employer or Contractor.

[17] Auld L.J. also relied on the circumstance that neither of conditions 6.2 or 6.3B refers to or qualifies the other. He contrasted the contract before him with those discussed in James Archdale & Co Ltd v Comservices Ltd and in S.S.H.A. v Wimpey Construction (UK) Ltd. That, in my view, is a powerful consideration which equally applies to the present contract. The insurance provision in clause 8.2 (of the Scottish form) is linked with the liability provision in the same clause. That clause, while expressly excluding liability for and consequentially an obligation to insure in respect of injury or damage to the Works, contains no express exclusion or qualification on the scope of the Contractor's liability and insurance obligations in respect of its negligence or other fault. The first defenders' argument depends on there being, by virtue of the existence and terms of clause 8.3B, an implicit qualification to that effect. I am not persuaded that such a qualification can be implied. If it had been intended to delimit the scope of the plainly expressed liability and insurance provisions of that clause, I would have expected to see an express exception, as in S.S.H.A. v Wimpey Construction (UK) Ltd. I agree with and adopt the reasoning of Otton J. in National Trust v Haden Young Ltd at first instance when discussing the equivalent English provisions - particularly at pp.106C-107C and 107F-108C. There is also force in the observation by Auld L.J. in Barking & Dagenham L.B.C. v Standard Asphalt Co Ltd at p.30H-I that clause 6.2 is primarily concerned with liability while clause 6.3B says nothing about it. Under the former the Contractor acknowledges liability for and undertakes to indemnify the Employer against the matters there described, the insurance obligation being without prejudice to the obligation of indemnity; the latter does not address liability at all. The same considerations apply to the identical words in clause 8 of the Scottish contract.

[18] Auld L.J. also relied on the consideration that the argument presented by the Contractor to the Court of Appeal, if correct, would involve there being a duplication of insurance cover. That consideration does not arise here (parties both accepting that such duplication would be inconsistent with commercial good sense) but the first defenders' argument in these circumstances relies heavily on an implied restriction - which the contractual provisions will not, in my view, bear. Auld L.J. also relied to some extent on the interpretative canon against construing a provision as intended to enable a party to escape liability for his own negligence. I find that consideration less cogent against the background of a history of standard forms where in some instances risk has been allocated to that effect. I do not find it necessary to rely on it in this case.

[19] In my view the conclusion to which Auld L.J. came (with which Millett L.J. and McCowan L.J. agreed) in Barking & Dagenham L.B.C. v Stamford Asphalt Co Ltd was sound and is highly persuasive authority on the construction of the identical clauses before me.

[20] It is true, as Mr McNeill argued, that the pursuers' construction would leave unprovided for under the contract damage to the Works caused by the negligence of either the Contractor or the Employer. That might give rise to exposure, particularly in circumstances in which major damage of that kind was caused by the fault of a Contractor who then by reason of insolvency or otherwise could not effectually be compelled under clause 1.1 to restore the Works. But either party could, if so advised, effect insurance extra-contractually against such risks (or carry such risks itself). I do not find the absence of compulsory provision persuasive.

[21] No argument was presented to the Court of Appeal based on the circumstance that clause 6.3B of the English form provided for insurance being in joint names. If provision for such insurance necessarily imported that both names were to be insured against the specified perils whether or not arising out of the negligence of either, that would be a powerful consideration in favour of the first defenders' contention in this case. The cover which the Employer would then have been obliged to take out would have been such that the insurer would, on principles of circuity, have had no effective subrogation right to recover from the negligent co-insured. But I am not satisfied that the fact that the insurance was to be in joint names carries the necessary inference that it was to be one which included the consequences of negligence of an insured. As Mr McLean pointed out, there would be a number of practical advantages to a Contractor in having the cover in his name as well as in that of the Employer; these advantages are independent of whether or not the cover includes such negligence. The first defenders do not offer to prove that the only insurance policy in joint names which could have been obtained in the market was one which extended to negligence on the part of an insured; nor do they offer to prove that as a matter of practice such cover was invariably effected.

[22] It is true that, speaking generally, insurance cover is not uncommonly taken out against consequences which include those arising from an insured's negligence (Ivamy p.287). It is also true, it appears, that joint names insurance can be effected which extends to the consequences of such negligence or of other conduct giving rise to liability. Such cover is envisaged in the context of insurance of commercial premises in Ross and McKichan at para.10.4 - but even there, in my view, the party would be wise to ensure that the joint names cover did plainly so extend. In the construction law field the editor of the 11^th Edition of Hudson (published in 1994 with a copyright date of 1995) refers to insurance in joint names as preventing subrogation, the latter being such as "would defeat the whole purpose of the insurance"

(para. 15-007). He discusses this more fully in the context of insurance of the Works at para.15-013/4. There is force in the proposition that a contractual provision for insurance of the Works in joint names might usefully cover events occasioned by an insured's negligence or other default. However, the learned editor does not discuss National Trust v Haden Young Ltd (at first instance or on appeal) or Barking & Dagenham L.B.C. v Stamford Asphalt Co Ltd (at least the last of which would not have been available at the date of publication) or, specifically, the inter-relationship between the provisions in the Minor Building Works Contract. It may also be noticed that the joint names insurance envisaged under clause 6.3B/8.3B is not restricted to the Works (or materials and goods related thereto) but extends to existing structures and other property. As illustrated by the circumstances of the present case, the loss consequent on damage to property other than the Works may be much more substantial than that consequent on damage to the Works. In British Telecom plc v James Thomson & Sons Ltd Lord Mackay of Clashfern, with whom all their Lordships agreed, contemplated at p.14 that a recognised insured under the joint names policy there under discussion would have had the benefit of that policy if the loss or damage had arisen due to an act or omission on his part. But that observation, which was obiter, was made in the context of the discussion of the effect of a different J.C.T. form. No reference was made to the Court of Appeal decisions discussed in the present case. On the material before me I am unable to accept that a contractual provision for joint names insurance in all circumstances envisages cover which will exclude subrogation against a co-insured.

[23] Keating (also published in 1995) notices at p.66 early reports of Otton J's decision in National Trust v Haden Young Ltd but does not take the discussion further. Connolly (published in 1999) notices both National Trust v Haden Young Ltd and Barking & Dagenham L.B.C. v Stamford Asphalt Co Ltd without offering any analysis of them or suggesting that the provision for joint names insurance should have led to different results. Emden at paras.[691] - [691.1] distinguishes, within "joint names" insurance, joint policies and composite policies and at para.[723] observes, under reference to National Oilwell (UK) Ltd v Davy Offshore Ltd [1993] 2 Ll.L.R.582, that the mere fact that the Contractor is a co-assured will not give him a subrogation action - though the case cited involved specialties about the temporal scope of the cover effected for the co-assured and also touched on issues concerning wilful misconduct; also, it being an All Risks policy, no question of negligence not being covered arose. Emden, while referring to National Trust v Haden Young Ltd in the Court of Appeal, was, it seems, published too late to discuss Barking & Dagenham L.B.C. v Stamford Asphalt Co Ltd in the Court of Appeal and that Court's endorsement of Otton J's reasoning in the earlier case.

[24] The principle of circuity as underlying the rule that an insurer's right of subrogation may be defeated is interestingly discussed by Lloyd J. in Petrofina Ltd v Magnaload Ltd at pp.139-40 but I have come to the view that that discussion does not provide a solution to the central question here, namely, whether the requirement for insurance to be in joint names imported that it would cover negligence or other fault on the part of an insured.

[25] I have not found the history of changes to the J.C.T. standard forms or the associated Practice Notes to be of assistance in construing the provisions in issue. Mr McNeill did not suggest that any exercise analogous to that of analysis of statutory history would be appropriate here. Nor do the Practice Notes in terms of authority represent anything analogous to the interpretative weight in relation to statutory provisions which may be accorded to Ministerial or like statements in the circumstances discussed in Pepper v Hart [1993] A.C.593. They do not represent clear policy objectives or intentions but purport to express legal views as to the effect of contractual provisions, some of which views I must conclude are or may be unsound in law.

[26] Having considered the whole authorities and arguments presented to me, I am not persuaded that the reference in clause 8.3B to the insurance under that clause being in joint names either of itself or when combined with other factors imports in the circumstances of this contract that the cover is to extend to insuring the Contractor against the consequences of its negligence or other fault.

[27] A subsidiary issue was discussed concerning the adequacy of the pursuers' specification of damages. It relates only to the pursuers' second conclusion under which they seek in the alternative a marginally lesser sum which excludes damage to the Works themselves. The pursuers' quantification of their claims is particularised in a written report by a chartered surveyor produced and held as repeated brevitatis causa in their pleadings. This calculates both the cost of the whole remedial works (to which conclusion 1 relates) and separately the cost of remedial works to the Works. The method of calculating the latter is set forth in the report. A step-by-step written guide to that method was provided at the hearing. In the end the only issue was whether that method was the only way in which the sum claimed under the second conclusion could properly be calculated. The contention in substance came to be whether the method adopted was, having regard to another suggested method, sound. That, in my view, is a matter for proof. The first defenders have adequate notice of the basis on which the pursuers calculate their alternative claim.

[28] In the whole circumstances I shall allow to all parties a proof before answer of their respective averments on record.

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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> European & International Investments Inc v McLaren Building Services Ltd & Anor [2001] ScotCS 67 (21 March 2001) URL: http://www.bailii.org/scot/cases/ScotCS/2001/67.html Cite as: [2001] ScotCS 67

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