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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Milnbank Housing Association Ltd v Page & Park & Ors [2000] ScotCS 68 (14 March 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/68.html Cite as: [2000] ScotCS 68

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In this action the pursuers seek payment by the first and second defenders jointly and severally of damages for breach of contract and negligence. The pursuers are a housing association. In 1987 they appointed the first defenders as consultant architects for a newbuild housing project at the Cathedral Precinct, Glasgow. In 1989 the second defenders were appointed clerks of works. In the closed record the pursuers aver that the first defenders breached their contractual obligations and separately their duty of care, to the pursuers in the following ways. They changed the specification for the flooring system without consultation with the pursuers. They granted a final certificate in the knowledge that there was an outstanding problem in relation to creaking floors. They failed to identify the source of this problem. They failed to provide plans and specification with sufficient details to enable the contractor to install the floors. They failed adequately to inspect the installation of the floors and so failed to detect the defects in the floor installation. The pursuers also aver that the second defenders were in breach of contract, and separately in breach of their duty of care to the pursuers, in respect that they failed to inspect the flooring systems during installation and so failed to detect defects in them.

The case came before me on the pursuers' motion to open up the Closed Record and amend it in terms of a Minute of Amendment and Answers as extensively adjusted by the parties. The history of the case is as follows. The summons was served in February 1996 and sought payment of the anticipated cost of remedial works. Those remedial works have still not been carried out. The Record was closed on 18 September 1996. On 29 October 1997 the Minute of Amendment which is the subject of this motion was allowed to be received, and the defenders were ordained to lodge answers within 28 days. On 9 December 1997 the case was sisted, without answers having been lodged. During the sist two sets of adjustments to the Minute of Amendment were intimated to the defenders by the pursuers. The more important of the two sets was intimated in early March 1999. The sist was recalled on 29 September 1999, on which date the first defenders were allowed to lodge answers late, and the parties were allowed four weeks to adjust the Minute of Amendment "as adjusted to date" and the answers for the first and second defenders. On 3 November 1999 a further 9 days were allowed for adjustment. The present motion to amend first came before the Court on 17 November 1999. After two continuations it was heard by me on 12 January 2000.

In their Minute of Amendment, and in particular by the adjustments intimated in March 1999 the pursuers seek to add the following averments against the first defenders to follow immediately after their averments in the closed record relating to the first defenders' failures to fulfil their obligations and duties as set out above:

In the second note of adjustments the pursuers add averments against the second defenders which have the effect of extending the second defenders' duties of inspection to cover the defects in construction set out in the closed record but also those added the Minute of Amendment as arising from the additional failures in duty averred against the first defenders.

Mr Connell for the first defenders urged me to refuse the motion to amend in the exercise of my discretion. He emphasised that the contract works were carried out between 1989 and 1991 and that the summons as signetted contained a case which centred upon creaking floorboards. In order to make that case the pursuers must have been in possession of information relating to the construction of the floor. The Minute of Amendment as originally framed in October 1997 was largely concerned with adding further specification to that case. The averments in the adjustments intimated in March 1999 while the action was sisted, were extensive, complex and new and not linked to what had gone before. Later adjustments revealed that the information on which those adjustments were based had been available to the pursuers since 18 February 1994, when a disruptive survey was carried out, or at least since 24 March 1994 when a draft report on that survey was produced. The latest adjustments averred that the pursuers could not have become aware of the location of the electrical distribution cables or any act, neglect or default relating to it until the report of 24 March 1994. Even if the adjustments under attack were not time barred, the Court in the exercise of its discretion, ought not to allow the Record to be amended. There was no explanation as to the delay which had occurred between the receipt of the report in March 1994 and the informal intimation of the adjustments in 1999. Reference was made to Greenhorn v J Smart (Contractors) Limited 1979 S.C.427 at 432 and Sellars v IMI Yorkshire Imperial Limited 1986 S.L.T.629 at page 365.

Mr Connell argued further that the informal intimation of adjustments while the case was sisted could have no effect. A step in the judicial process was required and no step in the judicial process could take place while the case was sisted. Formal intimation only took place in September 1999 after the expiry of 5 years from March 1994 and accordingly the averments in those adjustments were time barred. So far as the new averments in the Minute of Amendment relating to ventilation were concerned, they were said to arise from an inspection carried out in 1998, and not to have been discoverable by the pursuers before then. No explanation was given as to why that was so. The defenders were prejudiced in their defence to these averments in respect that the buildings had been lived in since 1991 when building control certificates had been granted. It was now difficult to discover the circumstances in which these certificates were granted so many years later.

Mr Murphy for the second defenders pointed to his plea-in-law to the effect that the pursuers' averments which relied upon an obligation incumbent on the second defenders which had been extinguished by prescription, should be deleted from the Minute of Amendment or alternatively withheld from probation. He submitted that if these averments were allowed to form part of the Record further delay and prejudice would be caused to the second defender. The case would either be sent to a procedure roll, or a preliminary proof on time bar would require to be held. The pursuers' motion should be refused as it stood, leaving it to the pursuers to return to the Court with a Minute of Amendment which omitted the controversial averments. The second defenders were prejudiced in respect that their staff simply could not remember the events of mid to late 1990s.

The principal submission of Mr Wolffe for the pursuers was that the controversial amendments were essentially an expansion of the obligation to inspect which had been relied upon all along. If it was thought that this was a matter of fact and degree then the matter could be determined at proof before answer. He made reference to McLeod v Sinclair 1981 S.L.T.(Notes) 38 and NV Devos Gebroeder v Sunderland Sportswear 1990 S.C.291; J G Martin Plant Hire v Bannatyne Kirkwood & France 1996 S.C.106; Classic House Developments Limited v G D Lodge & Partners (Lord Macfadyen 30 January 1998 unreported) and Sinclair v McDougall Estates Limited 1994 S.L.T.76. So far as the new averments relating to ventilation were concerned, the damage in that case only came to light in 1998 and so loss, damage and injury did not occur until that time.

Counsel were agreed that the determination of this motion was a matter for the Court's discretion, certain guidelines having been set out in the cases cited. Counsel for the defenders put forward two alternative bases on which I could refuse the motion. The first was on the ground that the Minute of Amendment introduced a new case, rather than an expansion of the old, after the expiry of the prescriptive period. The second was that I should refuse the motion in the exercise of my discretion, regardless of the technicalities of prescription, simply on the basis of the length of time which had elapsed since the execution of the contract works and since the service of the summons. As a result of this delay, it was argued, the defenders were prejudiced.

In relation to the first of these grounds of refusal, it is true that in a number of cases cited, the Court was able, at the stage of the motion to amend, to decide whether or not the obligations relied upon by the pursuers in amendments proposed after the expiry of the prescriptive period were different from those relied on in the original record. In the present case, however, I have found myself unable, on the basis of the pleadings and the submissions made to me, to determine, firstly, whether the obligations and duties relied upon by the pursuers in the Minute of Amendment represent an expansion of the case as pled in the closed record, or are truly a new case of which the defenders have had no prior notice; and, secondly, whether the averments in question were validly introduced into the judicial process within the prescriptive period. In relation to the second question, I did not have sufficiently clear information to enable me to determine the date on which the prescriptive period began to run, nor were the submissions which I heard sufficient to enable me to come to an informed view as to the effect of the informal intimation of adjustments while the case was sisted. I am not therefore prepared to refuse the motion on the first basis advanced on behalf of the defenders.

So far as the second ground for refusal is concerned, I have some sympathy with the defenders' position. They are faced with averments made for the first time almost 10 years after the execution of the contract works. In addition to that, it appears that the information which enabled the pursuers to make the averments contained in the March 1999 adjustments was first available to them in February or March 1994. There was no explanation for the delay in making those averments. Nevertheless I am unable to rule out the possibility that the amendments were validly introduced into the process within the prescriptive period, or that they represent an expansion of the case as formerly pled, rather than a new case.

In these circumstances I have come to the view that the appropriate course is to allow the amendment to be made in order that the issues which I am unable to resolve may be determined, either at procedure roll or after preliminary proof, should the defenders so wish. I shall therefore allow the record to be amended in terms of the Minute of Amendment and Answers as adjusted.