Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 66

 

CA147/14

OPINION OF LORD TYRE

In the cause

MARTIFER UK LIMITED

Pursuer;

against

LEND LEASE CONSTRUCTION (EMEA) LIMITED

Defender:

Pursuer: Wright:  Johnston & Mackenzie LLP

Defender:  Murphy QC;  Pinsent Masons LLP

6 May 2016

Introduction
[1]        The defender in this action was the main contractor for the construction of the SSE Hydro building in Glasgow.  The pursuer was engaged by the defender as sub‑contractor for work packages consisting, in general terms, of the structural steelwork, roof steelwork and roof cladding.  The present action has been raised to obtain a judicial determination of a number of issues in connection with claims by the pursuer for additional payments under the sub‑contract and for extension of time.  Some of those issues were addressed in my opinion dated 19 June 2015, published at [2015] CSOH 81.  This opinion is concerned with two further matters on which a diet of debate was allowed, referred to by the parties as craneage and truss nodes respectively. 

 

Craneage
[2]        The sub-contract agreement between the defender and the pursuer was for WP (work package) 2400, consisting of “Structural Steel including Metal Decking and Roofing”.  The pursuer seeks (i) declarator that the defender was obliged in terms of the sub-contract to provide craneage to the pursuer for roofing works and removal of jacking devices, including roof trusses as well as roof covering, and (ii) payment of the sum of £276,000 plus interest.  The claim is based upon Special Condition 3 of the sub-contract which stated as follows: 

“ Craneage for roofing works and removal of jacking devices will be provided by the Contractor.  All other access requirements are by the Subcontractor.”

 

The question for determination is whether, as the pursuer contends, the words “roofing works” include construction of the roof steelwork or whether, as the defender contends, they extend only to the roof covering.  The parties are agreed that the issue should be determined as a matter of contractual interpretation, although the defender has a subsidiary contention that the matter cannot be determined against it without proof. 

[3]        In support of their submissions, both parties referred to the observations of Lord Neuberger of Abbotsbury PSC on interpretation of contractual provisions in Arnold v Britton [2015] 2 WLR 1593 at paras 14-23.  Lord Neuberger’s starting point, at paragraph 15, under reference to previous House of Lords and Supreme Court authority, was that the meaning of a clause in a contract (in that case a lease) was to be assessed in the light of (i) the natural and ordinary meaning of the clause, (ii) any other relevant provisions of the lease, (iii) the overall purpose of the clause and the lease, (iv) the facts and circumstances known or assumed by the parties at the time that the document was executed, and (v) commercial common sense, but (vi) disregarding subjective evidence of any party’s intentions.  At paragraph 17, Lord Neuberger emphasised that except in a very unusual case the meaning of a provision is most obviously to be gleaned from its language.  He warned at paragraph 19 against departing from the natural language merely because the contract, if interpreted in that way, has worked out badly or even disastrously for one of the parties and, at paragraph 20, against rejecting a natural meaning because it appeared to be an imprudent term for one of the parties to have agreed, even without the benefit of hindsight.

[4]        The roof of the building in the present case is a complex structure.  In my previous opinion, I described certain features of it as follows:

“…The building is elliptical in shape, with an outward sloping external wall and a domed roof supported by diagonally latticed steelwork.  The external wall increases in height towards the rear of the auditorium, with the consequence that the domed roof is set at an angle to the ground…

The sequence of construction of the main roof steelwork was … divided into segments, albeit 16 instead of the 12 external wall sectors.  In the centre of the roof was a circular steelwork structure held temporarily in place by a vertical propping tower.  Each segment of the roof steelwork was built out from the top of the external wall to join the circular central section.  Commencement of construction of each segment of the main roof steelwork was dependent upon completion of construction of the concrete and steelwork of the sector of the external wall from which it was built out.  Once the segments of roof steelwork had been connected to the circular central structure, the central support trestle was removed.”

 

The roof covering is a proprietary Kalzip roof sheet system consisting of a number of layers.

 

Argument for the pursuer
[5]        On behalf of the pursuer it was submitted that the ordinary and natural meaning of the words “roofing works” included the roof steelwork as well as the roof covering.  Both are plainly part of the roof.  A roof covering cannot exist without other parts of the roof below it.  Reference was made to Special Condition 1 which referred to both “roof steel” and “roof coverings”, indicating that the words “roofing works” did not refer solely to roof coverings.  To the same effect, in the Pricing Schedule to the sub-contract, the parties were careful to use the expressions “roof cladding system”, “roof coverings” and “roof members”:  this too indicated that where the expression “roofing works” was used, it should be given a wider meaning.  The defender had no factual averments to indicate that this was an unusual case (see Lord Neuberger’s first factor) requiring the words to be given anything other than their ordinary and natural meaning. 

 

Argument for the defender
[6]        On behalf of the defender it was submitted that regard should be had to the structure of the parties’ contractual obligations.  In the Preliminaries Responsibilities Matrix (one of the sub-contract documents), it was made clear that the sub-contractor was responsible for supplying the craneage required to carry out its works.  Special Condition 3 was an exception to this general obligation.  In the General Pricing Summary, another sub-contract document, WP2400 for structural steel included roof steelwork.  “Roofing”, meaning the roof covering, was separately priced in WP 3600 (roofing).  Similarly, in the tender documents, WP A2400 consisted of the steel frame, and WP B2400 comprised the steel main roof frame.  WP 3600, entitled “roofing to main roof” addressed only the roof covering.  In all these respects the contractual documentation made clear that references to steelwork included roof steel, leaving only the roof covering to be dealt with under the heading of “roofing”.  In any event, it was submitted, the ordinary meaning of roofing is the roof covering and not the materials, regardless of whether one is referring to joinery work in a house roof or to steelwork in the roof of the Hydro building.  The definitions of roof and roofing respectively in the Shorter Oxford English Dictionary 1992 were “the outside upper covering of a house or other building” and “the act of covering with a roof;  material used or suitable for roofs;  that which forms a roof or roofs”.  Alternatively, it was submitted, if the court was in doubt it could hear factual evidence that the defender’s construction was in accordance with how the expression “roofing” was understood in the construction industry, and also in accordance with the common assumption of the parties to this contract. 

 

Decision
[7]        I reject the parties’ respective submissions that the phrase “roofing works” has a single meaning which is either restricted or not restricted to the roof covering as opposed to the structure supporting it.  In my opinion the expressions “roofing” and “roofing works” are too general to have a single ordinary and natural meaning applicable in all cases where a construction contract requires to be interpreted.  The meaning of “roofing works” in a particular clause of the contract must depend upon context, reading the contract as a whole.  In the context of this contract I consider that the defender’s interpretation is to be preferred.  The best indication of the context in which the words are used seems to me to be the subdivision of the works, and in particular those comprised within the sub-contract works, into work packages.  Within WP 2400, one finds in the General Pricing Summary separate prices for preliminaries, structural steelwork, metal decking, roofing, and provisional sums.  There is no doubt that the price for roof steel is included within structural steelwork and not roofing.  It is not therefore surprising that when one proceeds from the General Pricing Summary to the Pricing Schedule, the items within WP 3600 (in a section entitled “Cladding/Covering”) include roof coverings, but do not include roof steelwork.  A similar categorisation can be found in sub-contract document 4100 (“Scope of Works”) which includes, within the pursuer’s works, WP A2400 (steel frame), WP B2400 (main roof steel) and WP 3600 (roofing to main roof).  Again the expression “roofing” excludes the roof steel. 

[8]        On the basis of the context provided by the work packages and their pricing, I conclude that when the expression “roofing works” is used in Special Condition 3, it is used to mean the works falling within WP 3600, ie the construction of the Kalzip roof covering and not the roof steelwork required to support it.  I do not consider that doubt is cast upon this conclusion by the terms of Special Condition 1 which mentions roof steel and roof coverings individually:  if anything, this emphasises the fact that the two were regarded as separate in the minds of the contracting parties.  Moreover, I reach my conclusion without any need to inquire into the factual matrix, so that a proof before answer on this point is unnecessary.

[9]        In accordance with the defender’s motion, I shall refuse to grant decree in terms of the pursuer’s eighth and ninth conclusions, and I shall sustain the defender’s first plea-in-law (a general plea to relevancy) to the extent of excluding from probation articles 32 and 33 of the summons. 

 

Truss nodes
[10]      In general terms, the expression “truss nodes” refers to the connectors of steel members within the roof frame.  The roof, as constructed, has two layers of steelwork referred to by the parties as the top chord and the bottom chord.  In the top chord, the connectors were welded and fabricated onsite or in-house.  In the bottom chord, the connectors were made of cast steel.  The issue is whether the pursuer is entitled to payment, as a remeasurement of quantities, for the welded, fabricated connectors in the top chord. 

[11]      Special Condition 10 of the sub-contract provided as follows: 

“The Sub Contract sum includes for cast nodes in lieu of welded nodes to the bottom chord within the roof structure.”

 

The Pricing Schedule for WP 2400 contained the following entry: 

 

“Adjustments to tender price

 

Truss nodes                nr        348                  £1,665.27                    £579,512.92”

 

The General Terms and Conditions at section A10/100 of the General Preliminaries (Document 3300) stated inter alia that the sub-contract works would be subject to remeasurement of quantities save for the provisions of the Subcontract Terms and Conditions.

[12]      I do not understand it to be in dispute that the top chord of the roof contains 480 connectors (to use a neutral expression) and that the bottom chord contains 352.  It is also common ground that the pursuer has been paid for 352 truss nodes. 

 

Argument for the pursuer
[13]      On behalf of the pursuer, it was submitted that the 480 connectors in the top chord were truss nodes, and that the pursuer was entitled to be paid for those as a remeasurement at the specified contractual rate.  Special Condition 10 made clear that the connectors in both the top chord (welded nodes) and the bottom chord (cast nodes) were nodes.  The differing design as between the two chords had no relevance to each being truss nodes.  There was no dispute about either the rate at which truss nodes were to be valued or the remeasurability of the works.  The pursuer was accordingly entitled to be paid at the rate of £1,665.27 for a further 480 nodes. 

 

Argument for the defender
[14]      On behalf of the defender it was submitted that the point could not be decided without inquiry.  The defender offered to prove that the contract drawings had originally provided for welded, fabricated nodes in both top and bottom chords.  When the pursuer tendered it offered two options in relation to the bottom (though not the top) chord, namely welded and fabricated or cast nodes.  The defender selected cast steel nodes for the bottom chord.  The entry in the Pricing Schedule was an adjustment reflecting the choice of cast nodes for the bottom chord.  In context, therefore, the reference to truss nodes was only to the nodes with which the adjustment was concerned, ie the cast nodes in the bottom chord.  It was unsurprising that the quantity in the Pricing Schedule (348) was close to the number of truss nodes (352) in the bottom chord of the roof as built. 

 

Decision
[15]      I accept the defender’s submission that the point cannot be decided without proof.  While it seems clear that the expression “truss nodes” is generally capable of applying to the designs of connectors in both the top and bottom chords of the roof, the context in which the expression appears in the Pricing Schedule, ie in an adjustment to the tender price, may be significant as indicating, as the defender submits, that only the cast nodes in the bottom chord are being referred to there.  I shall therefore allow proof before answer of the parties’ respective averments in articles and answers 34-37 of the pleadings.