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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Milne & Anor v William Cowie Partnership & Anor [1999] ScotCS 42 (5 February 1999) URL: http://www.bailii.org/scot/cases/ScotCS/1999/42.html Cite as: [1999] ScotCS 42

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In this action the pursuers sue the defenders, a firm of architects, for damages for breach of contract, and separately for negligence, in connection with certain professional work carried out by the defenders for the pursuers in relation to the construction of a dwellinghouse at Aulton Farm, Auchattie, Banchory, Aberdeenshire. The case came before me on the motion of the pursuers to amend the record in terms of an extensive Minute of Amendment for the pursuers and Answers for the defenders. The motion was opposed on behalf of the defenders on the ground that the Minute of Amendment sought to introduce averments of obligations which had been extinguished by prescription. It was also argued on behalf of the defenders that certain averments of loss in paragraph 12 of the Minute which was said to flow from inconvenience and distress suffered by the pursuers were subject to the 3 year prescription and should not be admitted to probation. This second point was conceded on behalf of the pursuers and accordingly I need not deal with it further.

The record, which was closed on 19 March 1997, discloses that in the latter part of 1989 the pursuers entered into a contract with the defenders in connection with the design and supervision of the construction of the dwellinghouse. The defenders were instructed to design the house, to obtain relevant planning and local authority consents, to obtain a bill of quantities, to obtain and advise on the acceptance of tenders, and thereafter to supervise the construction of the house. They were instructed that the house should incorporate inter alia a heated swimming pool, a conservatory and air conditioning, and that it should be constructed to a high standard, using materials of high quality. It is said to be an implied term of the contract that the conditions of engagement of The Royal Institute of British Architects would apply to it. It is averred that work commenced on January 1990 and that it was agreed between the parties that the house would be complete and ready for occupation in or about June of that year. As a result of the defenders' breaches of contract the house was not completed until about December 1990. The breaches of contract averred are that the defenders failed to pay due attention to the design requirements of such a house on such a site. They failed to provide to contractors and sub-contractors sufficient and adequate plans and drawings to enable work to progress satisfactorily. They failed to co-ordinate and plan the work of the various contractors and sub-contractors, and they failed properly to supervise the works. The pursuers make further averments to the effect that these failures also constituted negligence on the part of the defenders. Numerous defects are then listed to which these failures are said to have given rise.

The Minute of Amendment which was allowed to be received in October 1997, seeks to delete Articles 2, 3, 4, 5, 6 and 7 of condescendence, which deal with the contract between the parties, the nature of the defects in construction and the defenders' breaches of contract. The Minute seeks to replace these articles, but it also seeks to introduce new articles of condescendence containing averments of negligence and of loss. It seems clear therefore that the Minute of Amendment is in fact designed to replace the entire Record, with the exception of the formal Article 1 of condescendence which identifies the parties, and the formal last article of condescendence which avers that the action is necessary.

Miss Paterson for the defenders began her submissions opposing the motion by pointing out that in paragraph 2 of the Minute of Amendment, which is intended to replace the article of condescendence setting out the basis of the contractual relationship between the parties, it is averred that it was an implied term of the contract that the terms of the Architect's Appointment (July 1989 Revision) of the Royal Incorporation of Architects in Scotland would apply thereto, and that the defenders would comply with all relevant professional standards, guides and Codes of Practice, and in particular, the RIAS Practice Guide published in March 1988; BS1192 1984 Construction Drawing Practice; Production Drawings, a Code of Procedure for Building Works published in 1987; BS5930, a Code of Practice for Site Investigation; BS8103 and BS6297, Codes of Practice for Building Drainage; and BS5720, a Code of Practice for Mechanical Ventilation. As I have noted, in the closed record the pursuers aver that it was an implied term of the contract that the conditions of engagement of the Royal Institute of British Architects would apply. Accordingly the pursuers were now seeking, after the expiry of the quinquennium to rely on new contractual provisions.

Miss Paterson went on to submit that the passage in paragraph 4 of the Minute beginning "The defenders failed to incorporate and co-ordinate the input and information from the structural engineer" and the following four sentences expanding that averment introduced an averment of failure in an obligation which did not appear in the closed record. The obligations relied on in the closed record are the design of the house, the obtaining of relevant consents and a bill of quantities, the obtaining and advising on the acceptance of tenders and the supervision of construction of the house which was to include a swimming pool, air conditioning and a conservatory. Paragraph 4 also contains averments of failure in the defenders' work in connection with the bills of quantities. No averments of failure in relation to the bills of quantities appears in the closed record.

Paragraph 4 of the Minute of Amendment also contains an averment that the defenders had failed in their obligation to protect the interests of the pursuers in drawing up the building contract by failing to specify a start and completion date for construction and by failing to provide for liquidate damages in the event of late completion. These averments, argued Miss Paterson, also sought to rely on an obligation, which was entirely absent from the closed record. There is then an averment of failure in an obligation to inspect the works. This also was an innovation since in the closed record the obligation was one of supervision. That was not the same thing.

Paragraph 5 of the Minute of Amendment contains an averment, under reference to a report by R R Alexander, ARIAS, to the effect that the defenders failed to integrate the design of the conservatory into the overall scheme of the house. The result of this failure is said to be the occurrence of condensation in the conservatory due to the proximity of the swimming pool. No averments of failure to integrate the design of the conservatory into the overall scheme of the house appears in the closed record.

In paragraph 6 of the Minute of Amendment it is averred that the drainage system conceived by the defenders did not function and reference is made to lengthy passages in Mr Alexander's report. It is averred that there was a failure to carry out a site investigation in compliance with BS5950, to take account of seasonal water variations and to provide for a perimeter field drainage system. The closed record contains no reference to any obligation on the defenders to comply with BS5950, or in relation to drainage systems.

In paragraph 7 of the Minute a number of criticisms of the air conditioning system are made. These differ in some respects from the criticisms made in the closed record, but Miss Paterson's principal point in this conenction was that the pursuers had changed the nature of the obligation in relation to the air conditioning in which the defenders are said to have failed. Paragraph 8 of the Minute of Amendment makes reference to a deficiency in the swimming pool heat pump of which no mention is made in the closed record.

In the course of her submissions Miss Paterson challenged the relevancy of references, at various points in the Minute of Amendment, to Mr Alexander's report

which is incorporated in the pleadings in its entirety. Under reference to Eadie Cairns v Programmed Maintenance Painting Ltd 1987 S.L.T.777, she argued that the incorporation of extensive passages of a report such as this, without indicating which specific points were being relied upon, and for what purpose, represented a failure to give fair notice and rendered the pleadings irrelevant. This was a further factor which militated against the allowance of this amendment.

Miss Paterson argued finally, under reference to Greater Glasgow Health Board v Baxter Clark & Paul 1992 S.L.T.35, that the prescriptive period began to run when the creditor became or ought to have become aware that loss, injury and damage had occurred and that it had been caused by negligence. In this case the pursuers aver in the closed record that a number of defects and deficiencies became apparent on their taking occupancy in late 1990. The report which is incorporated in the Minute of Amendment contains reference to three consulting engineers reports dated between March and July 1991. The pursuers were therefore aware of the defects and the fact that they had been caused by negligence by mid-1991. In these circumstances the Minute of Amendment was received after the end of the quinquennium.

On behalf of the pursuers, Mr Caldwell argued that the claim had not prescribed, but that the 5 year period had been interrupted by the raising of the action in 1995. Although there had been a change in the contractual provisions relied upon from the RIBA conditions to the RIAS conditions, there was in fact no change since these conditions were the same, and were shown to be the same in the expert's report which was incorporated into the Minute of Amendment. In any event the defenders had admitted in the closed record that the contract was reflected in the RIBA conditions and in their answers had admitted that the terms of the architect's appointment of the RIAS would apply. The onus was on the defenders to aver which obligations had prescribed and they had failed to do so. It was legitimate to draw the inference from the admissions that there was one contract with one set of conditions and that the defenders accepted that the averment in the closed record was simply an error of description. It was for the defenders to prove that the two contracts were different, that they had failed to make averments to that effect. The pursuers were merely expanding the averments on the aspects of the contract which the defenders had breached in order to make their case more specific. It was sufficient that there had been some reference to drainage and air conditioning in the closed record, and the reference to supervision encompassed inspection.

It is important to be clear at the outset that the question as to whether the record should be allowed to be amended in terms of this Minute of Amendment and answers is a matter for the exercise of my discretion, and not a question of competency. That is clear from the decision in the case of Jones v Lanarkshire Health Board 1991 S.L.T.714, and the cases cited therein, in particular Greenhorn v J Smart & Company (Contractors) Limited 1979 S.C.427.

The defenders say that the amendment should not be allowed because the minute seeks to change the basis of the case after the expiry of the quinquennium.

Counsel for the defenders submitted that the prescriptive period had begun to run in about July 1991, the date of the expert's reports identifying the cause of the defects, and that by October 1997, the date when the Minute of Amendment was received, the prescriptive period had expired. I did not understand that submission to be challenged by counsel for the pursuers. His position was that the five year period had been interrupted by the raising of the action in 1995 and that the onus was on the defenders to aver and prove which obligations had prescribed. They had however failed to do so. In that situation I consider it appropriate to proceed on the basis that the quinquennium had expired by the time the Minute of Amendment was received in October 1997. The question is then, does the Minute of Amendment seek to alter the basis of the pursuers' case against the defenders?

Perhaps the most obvious point to be made is that the Minute of Amendment seeks to change the contract which is said to govern the relationship between the parties from the Conditions of Engagement of the RIBA to the Architect's Appointment of the RIAS coupled with a number of British standards. While the closed record avers that the RIBA conditions govern the contract, it does not link up the obligations which the defenders are said to have breached with any specific provisions of those conditions. The defenders' breaches of contract are said to be failure to provide adequate drawings, failure to co-ordinate and plan the work of various trades and failure to supervise the works.

In the Minute of Amendment reference is made to the terms of certain specific clauses of the RIAS Architect's Appointment, particularly clauses 1.13, 1.16 and 1.20. The breaches of contract are averred to be failure to provide drawings beyond the outline proposal stage, failure to provide a scheme design or a detailed design, failure to provide production information and production drawings, failure to co-ordinate the design work of other consultants such as the swimming pool contractor and the air conditioning contractor, failure to co-ordinate the input and information from the structural engineer, failure of the bill of quantities to indicate any position in the nature of the work to be carried out, failure to protect the interests of the pursuers in drawing up the contract between the pursuers and the defenders by failing to specify a start and completion date for construction or to provide for liquidate damages in the event of late completion by the builders, failure to inspect the works in a competent manner resulting in failure to discover defective works and potential design failures, and failure to integrate the design of the conservatory into the overall scheme of the house. It should also be noted that these various failures are said to have resulted in a large number of defects in the building, many of which are different from and additional to the defects averred in the closed record.

Counsel for the pursuers submitted that the terms of the RIBA Conditions and the RIAS Architect's Appointment were the same. While there is no averment to that effect in the Minute of Amendment, counsel informed me that the two sets of conditions were shown to be the same in the report of Mr Alexander which is incorporated into the pleadings. Furthermore, it was argued, both sets of averments relating to the conditions of contract were admitted by the defenders.

I do not consider that any deficiency in the relevancy of the Minute of Amendment can be cured by the inspecific incorporation into the pleadings of Mr Alexander's report. The incorporation of extensive passages of such a report without indicating which specific points are being relied upon and for what purpose, represents a failure to give fair notice, see Eadie Cairns v Programmed Maintenance Painting Ltd. There is nothing to indicate to the reader of the closed record and the Minute of Amendment that the two different sets of conditions are in identical terms. The Minute of Amendment then goes on to set out averments of breaches of a number of obligations which are different from the obligations said to have been breached in the closed record. According such inference as can be drawn from the two sets of pleadings is that the two sets of conditions are different. This inference is fortified by the reference to various British Standards.

I have come to the view that the averments in the Minute of Amendment require to be viewed as a change in the basis of the case pled by the pursuers against the defenders. The submissions of counsel for the defenders, to which I have referred, to the effect that a number of the obligations which are said to have been breached in the Minute of Amendment are entirely absent from the closed record, seem to me to be well founded. The reference to these obligations for the first time represents more than an expansion of the averments in the closed record. It represents the introduction of a substantial new case against the defenders. This coupled with the substitution of a new set of conditions and reliance upon a number of British Standards leads me to exercise my discretion in favour of the defenders and to refuse to allow the amendment.

Act: Caldwell

Balfour & Manson

Alt: Miss Paterson

Simpson & Marwick, W.S.,

5 February 1999