Scottish Sheriff Court Decisions

SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS

Aberdeen, 24^th February 2011. Sheriff P Mann

Act: Artis, Advocate

Alt: Lake, QC

The Sheriff, having resumed consideration of the cause:-

ALLOWS the record to be opened up and amended in terms of the Pursuers' Minute of Amendment number 21 of process (lodged at the Bar on 31 January 2011) and the Defenders' Answers thereto number 22 of Process; Thereafter of new CLOSES the record; DEEMS the Defenders' preliminary plea number 1 appearing in the Record number 17 of process (which plea was repelled at the options hearing on 18 March 2009) to have been restated by way of amendment and ORDAINS the Defenders, if they insist upon the same, to lodge a note of the basis of that preliminary plea within 2 weeks from the date hereof; ALLOWS the Pursuers, if so advised, at or prior to the next calling of the cause to lodge a Minute of Amendment for the purpose of curing any supposed lack of relevancy or specification of their averments set out in the Defenders' said note, if lodged; FINDS the Pursuers liable to the Defenders for the expenses of the amendment procedure generally but FINDS the Defenders liable to the Pursuers for the expenses of the hearing of 31 January 2011; ALLOWS parties respectively to lodge an account of the foregoing expenses and REMITS the same when lodged to the Auditor of Court to tax and to report; CERTIFIES the cause as suitable for the employment of Junior Counsel; CONTINUES the cause to the procedure roll of 23 March 2011 at 09:45 am within the Sheriff Court, Sheriff Court House, Aberdeen in order to determine further procedure.

Sheriff Philip Mann

Note/

Note

1. Preliminary and General

1.1 This case called before me on 31 January 2011 as a hearing under Rule 18.3 of the Ordinary Cause Rules on the Pursuers' minute of amendment number 21 of process (a corrected version of which was tendered at the bar without objection) and the Defenders' answers thereto number 22 of process.

1.2 Mr Artis for the Pursuers moved me to allow the record to be opened up and amended in terms of the minute and answers. Mr Lake moved me to refuse amendment of the record, at least in part.

2. History

2.1 The action concerns certain alterations and extensions to the Pursuers' school premises in respect of which the Defenders had been engaged as architects. The Pursuers seek damages from the Defenders for breach of contract and negligence in the performance of the contract.

3. The Defender's Submissions

3.1 Mr Lake began by stating that his objections to the Pursuers' proposed amendments were twofold. Firstly, having regard to the procedural history of the case the amendments came late in the day and should be refused. He pointed to the fact that the dispute between the parties related to matters which originated in 2001 and concerned the actings of the Defenders before the end of 2003. The action had been raised in August 2008 and there had been proof diets fixed in February, April and November 2010, none of which had gone ahead. The minute of amendment had been lodged shortly prior to the November proof diet. Secondly, certain of the Pursuers' amendments introduced new grounds of action which were based on obligations which had prescribed and which, therefore, were time barred.

3.2 Mr Lake accepted that it was a matter for my discretion whether or not to allow the amendment. He confined his submissions almost exclusively to the question of prescription and time bar.

3.3 Mr Lake maintained that the minute of amendment introduced several breaches of duty, or injuriae, and several damna which were different to what had thus far been condescended upon by the Pursuers. He took particular objection to the following:

3.3.1 paragraph 3 seeking to amend crave 6

3.3.2 paragraph 4 seeking to introduce a new crave

3.3.3 those parts of paragraph 10 which, he said, introduced a failure on the part of the Defenders to interpret their brief and a failure to properly design the accommodation so as to provide classroom facilities on the fourth floor. He particularly criticised the first part of paragraph 10 c down to the word "offices" and the last sentence in that paragraph as introducing an entirely new loss and a new allegation as to the accommodation that was to be provided.

3.3.4 Paragraph 11 which introduced new averments as to replacement accommodation

3.3.5 Paragraph 12 a down to the words "in the attic" and paragraph 12 b which introduced new averments of fault.

3.3.6 Paragraph 14 c down to the words "use for teaching" which introduced an entirely new matter

3.3.7 Paragraph 16 g which seemed to introduce a claim for loss arising from inability to use the attic accommodation

3.3.8 Paragraph 16 h which introduced a new ground of fault, namely a failure to interpret the brief, and a new loss relating to the reduction in value of the building.

3.4 Mr Lake referred me to the following cases:

3.4.1 Sinclair v MacDougall Estates Ltd 1994 SLT 76 and, in particular, what the Lord Ordinary said at page 82 D-K. It was clear that one had to look precisely at the injuriae founded upon in the pleadings

3.4.2 J G Martin Plant Hire Ltd v Bannatyne, Kirkwood, France & Co 1996 SC 105 which was an example of an amendment being disallowed on the basis that it introduced a new basis of action

3.4.3 Strathclyde Regional Council v W A Fairhurst and Partners 1997 SLT 658, in particular pages 661 and 662 which endorsed the approach taken in Sinclair.

3.4.4 Cole v Lonie 2001 SC 610, particularly paragraph 16 on page 616/617 which confirmed the need to look for separate injuriae.

3.5 Mr Lake submitted that in identifying the prescriptive period it was necessary to identify the injuriae in respect of which prescription was running. There was no suggestion that these arose any later than the date when the Defenders were ejected from the site and, therefore, the prescription clock had started to run in 2003 for all claims. The Pursuers were attempting to introduce new and separate claims. Since these came after the end of the prescriptive period they came too late and were time barred.

4. The Pursuer's Submissions

4.1 In moving that I allow the Pursuers' amendments in full, Mr Artis agreed with Mr Lake that it was a matter involving the exercise of my discretion rather than being a matter of competency. He took no issue with the chronology described by Mr Lake and agreed that prescription had begun to run in 2003.

4.2 Mr Artis took me through sections 6, 9 and 11 of the Prescription and Limitation (Scotland) Act 1973 and pointed out that what prescribed were obligations, not the heads of damage arising from their breach. So, for example, in reparation claims it was legitimate to expand the heads of claim even after the end of the prescriptive period as new sequelae arose for the Pursuer.

4.3 Mr Artis observed that the cases relied upon by Mr Lake concerned separate and distinct obligations in respect of which different periods of prescription had begun to run. He agreed that if the Pursuers were proposing to step into whole new claims then one would have to look at the prescriptive period in respect of the obligation which underpinned those claims.

4.4 In Mr Artis's view the issue was what claims were made and what were the obligations in respect of which the Pursuers claimed implement at the outset of the proceedings. It was a matter of judgement as to whether what the Pursuers proposed related to a new and distinct obligation or was simply a development of what they had already presented.

4.5 Mr Artis suggested that I should take a broad approach to the matter rather than the technical kind of approach adopted in Sinclair. He referred to the case of N.V. Devos Gebroeder v Sunderland Sportswear Ltd 1990 SC 291 and to the speech of the Lord President (Hope) at page 303. The Lord President there said that as in arbitration proceedings, in which under the then version of Section 9(3) of the 1973 Act it was sufficient to state the nature of the claim in a preliminary notice, so in court proceedings a practical rather than a technical approach is required. Under reference to the case of Pompa and Others v the City and Royal Burgh of Edinburgh 1942 SC 119 at page 125 Mr Artis submitted that amendment should not be disallowed unless it proposed a radical and fundamental change in the Pursuers' case. A distinction should be drawn between that and something that was a working out or elaboration of what was already there.

4.6 Mr Artis produced a table of claims which in skeletal form compared the claims made in the record as it stood with the claims made in the record as it would be amended by the minute of amendment. By reference to this table he maintained that all that the minute of amendment did was to elaborate on the damage caused by breach of the obligations already founded upon. He acknowledged that it was proposed to introduce additional damages but these had their roots in the obligations which were already pled on record. He put it this way, that if the root is the same the tree can grow.

5. The Defenders' Response

5.1 In a brief reply Mr Lake agreed that what prescribes are obligations not heads of claim. He maintained that it was necessary to look at the injuriae that were claimed in order to determine what obligations were being pled. He maintained that the proposed amendment went beyond legitimate development of what was already pled and strayed into the realms of introducing new claims based on obligations and breaches of duty that could not be seen in the current record.

6. Discussion and Decision

6.1 I can deal shortly with Mr Lake's objection to the proposed amendment on the basis that it comes too late. In my view it does not. There is, for instance, no question of a proof having to be discharged as a consequence of allowing the record to be opened up and amended at this stage. I can see that a proof had to be discharged as a result of allowing the minute of amendment to be received. It seems to me that it was at that stage that this objection should have been taken. For all I know, it may have been taken then and may have been repelled. I decline to refuse the amendment on that ground.

6.2 I now turn to Mr Lake's main objection. So far as I could see there was little, if any, dispute between counsel as to the law in this matter. There was no real divergence between them in the interpretation of the various cases cited to me. They were agreed that it was a matter for my discretion whether or not to allow the amendment in full or in part. They were agreed that the issue was whether the proposed amendment was merely an elaboration, restatement or refinement (whatever one wishes to call it) of what was already pled on record or if it sought to introduce claims based on distinct obligations not already pled.

6.3 There can be no doubt that the amendment proposed by the Pursuers in this case is substantial, so substantial, in fact, that I will not attempt to summarise it here. That is not to say that I have not studied it carefully. I can well see why the Defenders would wish to suppress the proposed amendment, because its effect would be to substantially increase the value of the Pursuers' claim against them. However, taking the broad approach suggested by Mr Artis it seems to me that, substantial though it is, the proposed amendment truly does no more than expand upon the case that is already pled.

6.4 I accept that it is not sufficient for the Pursuers to say, for instance, that their existing case is based on breach of contract and so any amendment, no matter what, is permissible after the expiry of the prescriptive period so long as it does not stray outwith the bounds of breach of contract. The amendment has to be much more specifically connected to the existing pleadings than that. In this case I think that there is that necessary specific connection. It seems to me that the Defenders are already on notice that the breach of their obligations to not delay and to properly interpret the brief are founded upon. It seems to me that the Defenders must suffer the consequences of their breach of those obligations whenever those consequences come to the notice of the Pursuers, at least during the currency of the present proceedings.

6.5 It would not do, of course, if the Pursuers came along now and for the first time founded upon a completely different failure to interpret the brief of which they ought to have been aware - for instance if they were now to claim that there was a failure to interpret the brief resulting in, say, a lack of storage space in the basement or insufficient playground facilities. But that is not what this proposed amendment does, in my view. On a proper reading of the existing record it seems to me that it focuses on delay and failure to interpret the design brief resulting in additional expenses, loss of teaching space and so on. I find it difficult to detect anything in the proposed amendment that goes fundamentally beyond what is thereby foreshadowed, although it cannot be denied that it amounts to a very substantial restatement of the Pursuers' case.

6.6 Accordingly, I have allowed the amendment.

7. Further Procedure

7.1 Mr Lake moved that if I were to allow the amendment I should allow him to state a general preliminary plea to relevancy and specification and to put the case out for debate.

7.2 Mr Artis did not object to the Defenders introducing a preliminary plea provided that the Defenders be ordained to lodge a note of the basis of that preliminary plea and that the Pursuers be given the opportunity to lodge a minute of amendment to meet any matter highlighted in such note.

7.3 I have made provision for the above in my interlocutor. Further procedure will depend upon whether or not the Pursuers seek to amend further in light of the Defenders' note of the basis of their preliminary plea.

8. Expenses etc

8.1 Both Mr Artis and Mr Lake moved that the cause be certified as suitable for the employment of Counsel. They differed in that Mr Artis suggested that it was suitable only for the employment of Junior Counsel whilst Mr Lake sought certification for Senior Counsel on account of the complexity of the case and the value of the claim. I preferred Mr Artis's submissions in this respect and have provided accordingly.

8.2 Counsel were agreed that in the event that has occurred the Pursuers should be found liable for the expenses of the amendment procedure generally but that the Defenders should be found liable for the expenses of this hearing. Again, I have provided accordingly.