Milnbank Housing Association Ltd v Page & Park & Anor [2001] ScotCS 279 (4 December 2001)

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[1] On 29^th February 1996 the pursuers served a summons on the defenders which concluded for payment jointly and severally of £131,945. The action was one averring breach of contract or alternatively "fault" on the part of both defenders. The condescendence narrated the appointment of the first defenders as architects in respect of the construction of housing at the Cathedral Precinct, Glasgow in June 1987. This appointment was said to be subject to the Housing Corporation Scottish Guidance Note 20/83 and the RIAS Conditions of Engagement (November 1979 reprint). The Conditions included reference to the preparation of designs, including production drawings, and specification of materials and workmanship. Specific reference was made to the need for the first defenders to make inspections under clause 2.41 of the RIAS conditions. The first defenders were appointed "supervising officer" in terms of the JCT Standard Form of Building Contract, Private Edition with Quantities (1980 Edition) and the Scottish Supplement (January 1988 revision) entered into by the pursuers and the main contractor. The condescendence also narrated the appointment of the second defenders as "clerk of works" in March 1989, the appointment again incorporating the Guidance Note.

[2] One of the features of the housing scheme was the incorporation of a timber raft floating floor system between the ground and first floor levels of a two storey block of flats. The structure of such a floor consists first of a pre-cast concrete base. Over the surface of the base is laid an insulating quilt, similar to normal household thermal insulation. Wooden flooring battens, each of which has a polyethylene insulating strip attached to its lower surface, are then laid on top of the insulation. Eventually, chipboard flooring sheets are laid on top of and glued to the battens. However, before that is done, the services, notably the water pipes and electrical cabling, have to be installed. The theory is that the lack of direct contact between the wooden flooring sheets and the concrete base will prevent or significantly reduce noise transmission between the upper and lower flats. It is part of that theory that service cabling and pipes should not be in direct contact with both the wooden and concrete surfaces because they too might transmit sound between the flats.

[3] Originally, the first defenders had planned to use a proprietary raft flooring system called "Durabella". The first defenders showed a detail of the construction of this floor in Drawing No. G/285/D/101A (No. 16/17 of Process Appendix 7). This drawing did not show the location of any services. However, the Durabella system came with detailed installation instructions which, coupled with the specification provided by the first defenders, were accepted as adequate for the purpose of enabling the contractor to install the system properly. In an instruction dated 15 March 1990 (Pro. 16/17 Appendix 8) the need to use Durabella was deleted from the specification and a more generic description included. In the event, components from another proprietary system called "Danskin" were used. Nevertheless, it was averred that the change in the specification had left insufficient detail to enable the contractor to install the system "adequately".

[4] In March 1991 there was reported to the first defenders and the main contractor a problem with "creaking" of the floor in one of the flats (No. 13). Unsuccessful attempts were made to cure this. Despite the complaint, the first defenders issued a final certificate in respect of the works on 9 December 1991. In terms of clause 30.9.1 of the Standard Form Contract, the final certificate was :

"Except as provided in clauses 30.9.2 and 30.9.3...conclusive evidence that where and to the extent that the quality of materials or the standard of workmanship is to be to the reasonable satisfaction of the Architect the same is to such satisfaction..."

The problems with creaking had continued to the date of service of the summons. There was also a problem with creaking of the floors of the flats on the lower storey. These floors were of a different construction, being suspended rather than floating. But, it was said that the specification had been changed there too in a similar fashion to that of the upper floor details.

"8 During the course of construction, the first named defenders as architects and the second named defenders as Clerk of Works failed to appreciate defects in the contractors' installation of the said flooring systems. In particular the first and second defenders failed to notice and report physical contact between the structural concrete slab and service materials projecting through the resilient layer of insulation in the flooring system. They failed to notice and report packing of softwood bearers at services in the floor systems. They failed to note the resilient layer of insulation detail in the returns behind softwood battens to the underside of skirting. As a result of these failures the flooring systems were incorporated in the buildings in a defective state."

"9 In the foregoing circumstances the first named defenders are in breach of contract, et separatim, breach of duty to the pursuers. The first named defenders granted a Final Certificate in the knowledge that there was an outstanding problem in relation to creaking floors. The first named defenders failed to identify the source of the problem in relation to creaking floors. The first named defenders failed to provide plans and specifications with sufficient details to enable the contractor to carry out the works of installation of the said floor. The first named defenders failed to adequately inspect the installation of the said floors and thereby failed to detect the defects in installation hereinbefore condescended upon them. An ordinarily competent architect exercising reasonable care and diligence would have declined to grant a Final Certificate until the problem relating to creaking floors was isolated and remedied. An ordinarily competent architect exercising reasonable care and diligence would have provided plans and specifications sufficient to enable a contractor to carry out the work of installation of floors in a proper manner. An ordinarily competent architect exercising reasonable care and diligence would have detected the aforesaid defects in the flooring systems on installation. In respect of each and all of the said failures the first named defenders are in breach of their contractual obligations to the pursuers, et separatim, have acted in breach of duty. As a result of the first named defenders' said breach of contract et separatim breach of duty the pursuers have suffered loss as more fully hereinafter condescended upon.

10 In the foregoing circumstances the second named defenders are in breach of contract et separatim, have acted in breach of their duties to the pursuers. It was the second named defenders' duty to inspect the said buildings during the course of construction and, in particular, to inspect the said flooring systems during installation. Any ordinarily competent Clerk of Works exercising due care and diligence would have noted and reported the aforesaid defects in the flooring systems. By their failure to so report the second defenders have breached their said contract and have acted in breach of their duty to the pursuers. As a result of the second defenders' breach of contract, et separatim, breach of duty the pursuers have suffered loss as hereinafter condescended upon."

The loss condescended upon was described as "remedial building works" costing some £94,500 together with decant and disturbance payments and loss of rent. The lack of specification of the nature of the remedial works is remarkable.

[6] It was in the eighth article of condescendence (above) that the series of averments could be found that set out what was then the pursuers' case relative to the defects in the building work. Just what these various averments were supposed to mean is perhaps difficult to grasp immediately. The reader of them, and the subsequent averments relative to breach of contract and duty, might be forgiven for concluding that perhaps the pleader was having difficulty in translating a technical report into comprehensible language. This is a little surprising because by the time the summons was served, the pursuers had a final report (Pro. 16/17) from independent architects (The Grant Partnership) dated October 1994.

[7] The report criticised the change of instruction from a specific Durabella system to one without details of any alternative proprietary system. In particular, although Danskin components were in fact used, the first defenders did not specify that the floor had to be installed using the Danskin instructions. The Danskin instructions had particular dimensions for the spacing and positioning of the battens in different floor loading circumstances. Where the floors were uneven they recommended packing below the battens. The report also identified BS 8233 of 1987 relative to floating floors and notably the transmission of sound. This British Standard, as it was referred to in the report, focused upon the need for the designer of any system to make frequent site visits to check that the appropriate work is being correctly executed. It stated that electrical cables should not be placed under against or within thermal insulation unless in accordance with IEE wiring regulations. These provide for increased capacity of cables in such circumstances. The report also mentioned the Building Standards (Scotland) Regulations 1990 (not in force at the material time) which stressed the need not to create a bridge between the wooden floating floor layer and the concrete base.

[8] It was the opinion of the Grant Partnership that a number of design problems had been apparent. These noted that attention should have been given to the following points:

: "1) to avoid physical contact of the concrete slab with materials projecting through the resilient layer of insulation. This particularly relates to copper pipework for the hot and cold supply...

3) The resilient layer of insulation should be detailed in such a manner that it returns up behind the softwood battens to the underside of the skirting completing the insulation barrier of the floating floor."

If there had been an attempt to translate the passages quoted and others into the averments in article eight then that attempt, it might be said, met with limited success. The report had drawn attention to the need to look at the defective positioning of both the water pipework and the electrical cabling. It included remedial work to these services in the estimates which made up the sum concluded for. Nevertheless, no express mention of these particular services was made in the summons, even in the averments relating to quantum. The initial problem being investigated was creaking flooring. There was no reported problem of sound transmission from the upper to the lower floors through a bridge being created by water or electrical services. The fundamental problems causing the creaking were inadequate gluing of the flooring sheets to the battens and inadequate positioning and support of battens themselves. It is then perhaps remarkable that it can hardly be said that these were focused or even mentioned to any material extent by the pleader in any of the articles of condescendence.

[9] Adjustment of the pleadings was extended beyond the standard period on no less than four separate occasions in the months of May, June, July and August 1996 before the record eventually closed on 18 September 1996. The pursuers' case had changed little during the adjustment period. The closed record was received late on 11 March 1997 and the cause was sent to the Procedure Roll. A diet on that roll was fixed for 29 October 1997 but was discharged when the pursuers lodged a minute of amendment. This minute expanded upon the creaking floor case and seemed at last to incorporate averments relating to the more obvious causes of the creaking. In that regard the amendments in the initial minute were not opposed. The minute was received and answers were appointed to be lodged within twenty eight days. However, on 9 December 1997 the cause was sisted without answers being lodged. It remained sisted for almost two years, the sist being eventually recalled on 29 September 1999. However, somewhat unusually during a period of sist, two sets of adjustments to the minute of amendment were proposed by the pursuers. The more significant of the two was one intimated in March 1999 and it was on that set of adjustments that focus fell. When the sist was recalled, the Lord Ordinary allowed answers for the first defenders to be "lodged" and allowed all parties four weeks to adjust the minute of amendment "as adjusted" and answers. A further adjustment period was allowed until 12 November 1999 when it was determined that the cause be put out By-Order five days later, on 17 November. On that date, the pursuer moved the Court to allow the closed record to be opened up in terms of the minute of amendment and answers as adjusted. This motion was opposed by both defenders and continued twice before eventually being heard by the Lord Ordinary on 12 January 2000.

[10] The essence of the opposition was because of what the defenders maintained was a new case being made out by the pursuers. This case appeared as a proposed amendment to the eighth article of condescendence. Whilst reworking the averments on the alleged "defects in the contractors' installation of the said flooring systems" (see the original averment) the pursuers proposed to add as a defect :

"The electrical distribution cables in each flat are laid under acoustic insulation and on top of pre-cast concrete floors rather than clipped to battens above and laid over the top of the insulation. The acoustic insulation material possesses thermal insulating properties and, as a result of this, the size of cables installed does not meet the requirements of Regulations 433 and 526-6 of the 15^th Edition of the IEE Wiring Regulations which were applicable at the time the flats were designed and constructed."

"As a result of the failure to comply with the said IEE Wiring Regulations, the installation does not comply with the requirements of the Building Standards (Scotland) Regulations 1981, Regulation N3(1) which requires that all electrical conductors shall be of sufficient size and current rating for the purpose for which they are to be used.

The first named defenders allowed cables to be installed before the floating floor and under the insulation material. Had they considered the integration of cables with the floor construction the first named defenders would not have allowed this. During the course of construction the first named defenders failed to appreciate these defects in the electrical services. As a result of this, the electrical services have been incorporated in the buildings in a defective state."

"The domestic water pipework has been installed below the thermal insulation. This is contrary to the requirements of the Building Standards (Scotland) Amendment to Regulations 1987. The relevant sections are Building Standards page 18 Part 2 : Basic Construction, floor type 2: concrete base with floating floor. Points to Watch and the Water Supply Bylaws Guide 1986 Bylaw 49 item (l) (sic). These provide that there should be no physical contact between the floating floor and structural floor. By placing the pipework below the insulation, a physical bridge occurs creating such physical contact when the pipework is connected to sanitary appliances...The copper pipework bridges the raft floating floor and increases the sound trafficking through the flats.

During the course of construction the first and second named defenders failed to appreciate these defects in the contractor's installation of the domestic water installation. The first named defenders failed to provide sufficient information to enable the contractor to install the services as required by the said Regulations and Bylaws. The first named defenders failed to provide drawings delineating service routes with sections and details through the floor showing the location of services. The first defenders drawing G/285/B/101A contains the floating floor detail. The services should be but are not shown on this drawing."

"The first defenders failed to guard the pursuers against defects and deficiencies in the work of the contractor as they were contractually obliged to do in terms of clause 1.60 of the said RIAS conditions. The first named defenders failed to appreciate the defects in the contractor's installation of the electrical services and the domestic water pipework installation."

"The said defects in the said building were not detected during the course of construction and the building was therefore completed in a defective state, as a result of fault et separatim breach of contract on the part of the second defenders."

All of these proposed averments had been foreshadowed in the October 1994 report by the Grant Partnership.

[11] When the case called before the Lord Ordinary in January 2000, he recorded that :

"Counsel were agreed that the determination of this motion was a matter for the Court's discretion...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."

"...I have found myself unable...to determine...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 had no prior notice...

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."

At a By-Order on 24 March 2000 the Lord Ordinary withdrew the cause from the Procedure Roll and allowed a preliminary proof "on the question of time bar". This proof was heard by me on 15 and 16 November 2001, a date approaching the fifth anniversary of the cause and almost a decade after the issue of the first defenders' final certificate.

[12] Prior to the commencement of evidence I was advised that the scope of the preliminary proof was limited to whether the first defenders' third and the second defenders' fifth pleas-in-law should be sustained. These pleas were as follows :

"3. Esto the first defenders were to any extent in breach of any obligations owed by them to the pursuers in relation to the installation of electrical services and the domestic water pipework installation (which is denied), any such obligation has prescribed in terms of the Prescription and Limitation (Scotland) Act 1973 and accordingly the pursuers' averments thereanent should not be remitted to probation."

"5. The pursuers' claim anent electrical and plumbing work, having prescribed prior to the introduction of averments relevant thereto into the pleadings in this case, the action, in so far as relative thereto, should be dismissed."

It was agreed that if the Court held that the obligations founded upon in the amendments had been made the subject of a relevant claim in the summons (read with the Minute of Amendment as unadjusted) then the pleas of prescription should be repelled. If no relevant claim had been made in the summons then the pleas would fall to be sustained. No question of the exercise of discretion relative to amendment was therefore involved. I was being asked simply whether or not the case as originally pled constituted a relevant claim as regards the pipework and electric cabling such as to interrupt the prescriptive period.

[13] Two Notices to Admit had been lodged (Nos. 17 and 22 of process). There had been one Notice of Non Admission (No. 18). These effectively agreed much of the procedural history set out above and most of the contractual documentation. The only witness at the proof was Allan Grant, architect and town planner with the Grant Partnership, who had prepared the report referred to above on the instructions of the pursuer. There was no challenge, for the purposes of the preliminary proof, to Mr. Grant's credibility and reliability and I accepted his evidence on the matters of fact he spoke to. He said he had initially been called in to look at the problems with the creaking flooring in flats 11, 13 and 17. There had been no complaints about sound transmission from the upper to the lower flats. There had been no problems with the working of the electrical or plumbing services. By the time he had been called in the final certificate had been issued and efforts to have the main and sub-contractors remedy the problem had been unsuccessful. He prepared a draft report (Pro. 16/6) which he issued to the pursuers' solicitors on 24 March 1994 (Pro. 16/15). The final report was produced following disruptive investigation.

[14] Although Mr. Grant's evidence assisted in explaining the history of the investigation into the problems with the flats and identified to a degree what it was alleged that the first and second defenders had done wrong, ultimately his evidence was of limited value in helping to determine the limited issue which was left for me to resolve. He described the purpose and structure of the raft floating floor system. He spoke to much of what the pursuer had included in the amended case and which had also been contained in his October 1994 report. For example, he explained why it was important in acoustic terms to have the services located above the insulation. He drew attention to the relevant "Points to Watch" part of the Building Regulations (Pro 16/17 Appendix 14) of 1987 (see pleadings quoted above) which emphasised the need to take care not to create a bridge between the wooden flooring and the pre-cast concrete base. He mentioned the electrical wiring literature recommendations relative to the upgrading of wiring which was located in an "unventilated" space (e.g. underneath insulation). According to Mr. Grant, the flooring work would have been phased. Once the concrete structure was in place, the insulated layer ought to have been laid over the entire surface, then the timber battens laid on top. The services should at that point have been rooted to their sources and extended to their destinations. Only once the services had been checked should the flooring sheets have been laid.

[15] When Mr. Grant carried out his disruptive surveys, he noted two types of deficiency, although some of these he had suspected from his earlier work. First there were defects relating to the floating floor itself and secondly there were those relating to the services. The division of the defects in to these two distinct types was Mr. Grant's own categorisation. The flooring defects were related to the raft of the floor, notably the gluing of the sheets to the battens and the absence of battens at peripheral points. The service defects were essentially their being laid through and underneath the insulation. Both types of defect were illustrated by reference to the photographs appended to the report. Much of Mr.Grant's remaining evidence perhaps related more to the merits of the case rather than the issue at preliminary proof. For example, subject to one qualification relative to a clerk of works' ability to gauge the capacity of electrical cabling, the defects with the services, said Mr. Grant, would have been obvious, at least in part, upon inspection by the architect and clerk of works prior to the laying of the flooring sheets. Indeed, before the bulk of the work commenced, there ought to have been a mock up of one of the flats so that it could be ascertained whether the plumbing, electrical and other trades were capable of installing the services correctly. At that and the site inspection stage, the architect ought to have specified to the clerk of works the standards he was looking for and the clerk of works ought to have followed that specification. The location of the services (i.e. above the insulation) should earlier also have been specified on the architect's drawings but this had not been done. It seemed clear that the services had been installed prior to the laying of the insulation.

[16] I should add that during the course of cross examination of Mr. Grant by the second defenders, objection was taken to certain questions which might have been thought to be attempts to extract from the witness his views on how the contract ought to be construed. The second defenders response was that the attempt was merely to ascertain what action the witness would have taken had breaches of certain contractual provisions occurred. To a degree, the lines of evidence being pursued here seemed again, albeit understandably, to have a tendency to drift into the merits of the case, especially on what might be expected of a clerk of works relative to the compliance of electrical wiring and the pipework with the regulations or other written guidance. Ultimately, Mr. Grant's answers to the questions, which I allowed under reservation of all questions of competency and relevancy, did not have a significant bearing on my determination of the case. On balance, the line of evidence being adduced was not objectionable having regard to its purpose as stated by the second defenders. I therefore formally repel the objections.

[17] The pursuers' motion was for the Court to repel the pleas of prescription and thereafter allow a proof before answer. The question was whether in terms of section 6 of the Prescription and Limitation (Scotland) Act 1973 (c 52) a relevant claim had been made in relation to the obligation in issue. A practical rather than a technical approach to this question needed to be adopted (Devos Gebroeder v Sunderland Sportswear 1990 SC 291, Lord President (Hope) at 303). There were two strands apparent from the cases. The first was a broad approach which concentrated not upon whether different particular sources of obligation were being pled but upon whether what was being introduced was an entirely new ground of action (British Railways Board v Strathclyde Regional Council 1981 SC 90; Macleod v Sinclair 1981 SLT (Notes) 38 OH). The second focused on the narrower point of whether a new ground of fault or source of obligation was being introduced (JG Martin Plant Hire v Bannatyne, Kirkwood, France & Co. 1996 SC 105; Classic House Developments v GD Lodge & Partners, unreported, 30 January 1998, Lord MacFadyen). The pursuers did not wish to commit themselves to the correctness of either approach but could, it was said, succeed on either at least if "obligation" was not too narrowly defined. The cases, which looked at the problem from the opposite direction in ascertaining whether the requisite prescriptive period had elapsed from the date of discovery of the defect and its consequences were not of material assistance (i.e. Cole v Lonie 2001 SCLR 717 Lord Dawson at 723 approving Sinclair v McDougall Estates 1994 SLT 76 OH, Lord Maclean at 82).

[18] In this case, the summons intimated to the first defenders that the pursuers were founding upon the first defenders' obligations both in contract and delict. It intimated that the pursuers were complaining first about a failure on the first defenders' part to provide plans and specifications with sufficient detail to enable the contractor to carry out the installation of the floor, including the location of services. It then also set out the second complaint relative to the first defenders' failures during the course of site inspections to identify the defects in installation, notably the location of the services. Indeed the original article eight even referred specifically to service materials projecting through the insulation. The summons also contained a similar case as regards inspection against the second defenders again in contract and delict, which also referred back to the article eight defects.

[19] The new material simply continued to deal with the problem of the location of services albeit in greater detail. It was still a case based upon obligations relative to design and inspection. The laying of the services was integral to the laying of the floor. The pleas-in-law had not changed. The legal obligations remained the same. There was no "new" case. As counsel phrased it, the foliage may have become more luxuriant but the roots and trunk remained the same.

[20] The first defenders' motion was to sustain their third plea-in-law and exclude from probation large tracts of the averments namely : (a) numbered line 3 in the eighth article (see above); (b) the whole of the ninth article; (c) the whole of the tenth article; (d) in the twelfth article, the sentences from : "The first named defenders failed to guard..." to "...the contractor's installation of them"; and "An ordinarily competent architect exercising due care and diligence would not have failed to guard..." to "...and to require these to be remedied."; and (e) in the fifteenth article from "The remedial work required in all upper floor..." to "...plywood base to service runs." Thereafter, the first defenders wished the case to be sent to the Procedure Roll on their preliminary plea.

[21] The policy of section 6 of the 1973 Act was to prevent stale claims by requiring that notice of the nature of any claim be made within the quinquennium. Categorisation of the nature of the claim founded upon depended in each case upon an examination of the facts and circumstances, primarily gleaned from the pleadings but also from relevant documents and other evidence. Provided a claim remained fundamentally the same then it could be restated after the expiry of the prescriptive period. A practical approach was required. A claim could be regarded as different either because its legal or factual basis of it was separate from that originally pled (Devos Gebroeder v Sunderland Sportswear (supra) Lord President (Hope) referring to the change in factual basis at 304). In practical terms in this case the question was whether the defenders should be taken to have understood that an obligation of the width now contended for had always been intended as part of the claim (JG Martin Plant Hire v Bannatyne, Kirkwood, France & Co (supra) Lord Justice Clerk (Ross) at 111; GA Estates v Caviapen Trustees 1993 SLT 1051, Lord McCluskey at 1059; Lord Weir at 1060; Lord Penrose at 1065). The cases of Cole v Lonie (supra) and Sinclair v McDougall Estates (supra) were concerned with the concurrence of injuria and damnum and did not assist.

[22] The pursuers case as set out in the summons had founded upon certain specific contractual provisions in the RIAS conditions, notably clauses 1.3 and 1.6. The case focused upon the creaking of floors and all the facts averred related to that problem. The failures alleged related to the flooring itself and there was nothing about the pipework or electrical cabling. The reference to "service materials" related to the risk of sound transmission. In short there was nothing in the original case to put the defenders on notice that the water pipework or electrical cabling was being criticised. The final sentence of the eighth article referred to "the flooring systems" being incorporated in a defective state. That was a reference to the sheeting, battens and insulation and not to plumbing or electrical services. These defects were defects in workmanship.

[23] The new averments raised for the first time the issue of integration of the services into the flooring system and breaches of statutory requirements in that regard. There had been no prior reference to any obligation of either design or inspection in conjunction with these requirements. The new averments had nothing to do with the original case of defects in workmanship relative to creaking floors. The defenders could not reasonably have anticipated such a new case from the original pleadings of fact. In that regard it was important to look at what could fairly be extrapolated from the facts as originally pled.

[24] The second defenders adopted the submissions of the first defenders and moved the Court to sustain their fifth plea in law and to make the appropriate deletions of averments already mentioned and to remove also the references to Electrical Works and Piped Services Works from the Schedule at the end of the record (page 42). They were content that thereafter the case should proceed to a proof before answer upon whatever averments remained.

[25] The issue was a straightforward one of whether the current claim relative to water pipework and electrical cabling rested on the same obligation as was pled in the original summons (and minute of amendment unadjusted) or not. Although not all the dicta in the authorities cited could be reconciled, the approach of Lord MacFadyen in Classic House Developments v GD Lodge & Partners (supra) was correct. The views expressed in British Railways Board v Strathclyde Regional Council (supra) were in the context of general duties of care to a neighbour and of limited assistance. The present case was different given the existence of contracts defining the relevant duties and restricting any general delictual ones.

[26] It was difficult to determine from either the original or the current pleadings just what contractual or delictual obligations the pursuers were founding upon. However, essentially, the original case against the second defenders was one concerned with the defective installation of a proprietary flooring system and a failure to spot that upon inspection. The flooring system was self contained and the pipework and cabling had no relationship to it other than physical proximity. The defects originally pled in the eighth article were joinery in nature and gave rise to the creaking. The particular duty founded upon against the second defenders was "to inspect the flooring systems" (tenth article) and had nothing to do with services. The obligation "to inspect" had to be given some kind of context. What was it that was to be inspected ? The answer was originally just the flooring. The pleader had incorporated the case relative to services in different articles and in so doing recognised the different nature of the obligation involved. Whereas the original case related to a failure to detect defective workmanship, the new case was one of a failure to detect non compliance with regulations. These two potential defects were treated differently in the JCT contract (Pro. 20/5). Clause 6.1 obliged the contractor to comply with regulations. The duty of the second defenders as clerk of works to inspect was tempered by the terms of the contract. An obligation to inspect for defective workmanship was different from one to inspect for breaches of regulations since these were quite separate elements (Belcher Food Products v Miller & Black 1999 SLT 142, OH Lord Gill at 148). This was made clear in the terms of the finality clause (30.9).

"6.(1) If.....an obligation to which this section applies has subsisted for a continuous period of five years -

(a) without any relevant claim having been made in relation to the obligation...

then as from the expiration of that period the obligation shall be extinguished.

(2) Schedule 1 to this Act shall have effect for defining the obligations to which this section applies...

(d) to any obligation arising from liability (whether arising from any enactment or from any rule of law) to make reparation;..."

(g) to any obligation arising from, or by reason of any breach of a contract..."

The use of the word "obligation" in the schedule, in the context of claims of damages either for the commission of a delict or for breach of contract, seems to refer to the obligation to pay the damages in respect of the delict or breach rather than to the contractual or delictual obligation which is said to have been breached and which might be said to lie behind the plea for damages. However, no doubt it is necessary to look at what lies behind the plea so as to determine the nature of the claim.

[28] In a case such as this where a pursuer seeks to amend after the expiry of the prescriptive period and the only question is whether or not that period has, in respect of the matter in the amendment, been interrupted by the existing action, the question is whether, taking a practical rather than a technical approach, the amended claim remains fundamentally the same as that previously upon record (Devos Gebroeder v Sunderland Sportswear (supra) Lord President (Hope) at 303). If the new and old material is to be seen as constituting elements of one claim relating to the same obligation then prescription will not have extinguished either element. On the other hand if the new material is to be seen as relating to a different obligation then it will have prescribed (Classic House Developments v GD Lodge & Partners (supra) Lord MacFadyen at p. 6). In matters of contract, a claim for damages based upon the breach of one provision may be seen as relating to a separate obligation from one to pay damages based upon the breach of a different provision (GA Estates v Caviapen Trustees (supra), Lord McCluskey at 1059; Lord Penrose at 1065; Classic House Developments v GD Lodge & Partners (supra) Lord MacFadyen at 8-9). On the other hand, where there is a general express or implied term to execute a contract using reasonable care, an action based upon one aspect of negligence may permit a pursuer to introduce other aspects of negligence outwith what would otherwise be the prescriptive period (Macleod v Sinclair 1981 SLT (notes) 38, Lord Jauncey at 39; cf JG Martin Plant Hire v Bannatyne, Kirkwood, France & C. (supra) Lord Justice-Clerk (Ross) at 111). No doubt similar considerations might apply in certain situations when considering breaches of delictual duties. A case averring particular damage to a person or property caused by "fault" will often be sufficient to interrupt prescription in respect of many if not all ultimate formulations of how the fault arose (British Railways Board v Strathclyde Regional Council 1981 SC 90, Lord Kincraig at 92-93, approved by the Lord Justice Clerk (Wheatley) at 97; cf again JG Martin Plant Hire v Bannatyne, Kirkwood, France & C. (supra) Lord Justice-Clerk (Ross) at 111). Each case will depend upon its own facts and circumstances. In each case also no doubt the existence of any material change in the legal bases for a claim will be significant but major alterations in factual averment may also be important (Devos Gebroeder v Sunderland Sportswear (supra) Lord President (Hope) at 304).

[29] I do not regard the pursuers' claim as it now exists upon record as fundamentally different from that which existed prior to the introduction, by adjustment to the Minute of Amendment, of the material complained against. Prior to that introduction the case was one for damages based upon certain breaches by the defenders of duties said to be owed both under contract and the general law of delict. It is not, of course, sufficient merely that the case remains one based upon such breaches if, looking at the matter broadly, what is being made out is a different claim. However, I do not think that is what is being made out albeit that it would have helped if the original drafter of the summons had been able to translate, if that had been his intention, the claim apparent from the expert report into averment with greater accuracy and specification.

[30] As originally pled, crucially, the eighth article of condescendence included reference to a failure on the part of both defenders to appreciate defects in the installation, not merely the self contained construction, of the flooring systems. One of these defects was expressly stated to be "physical contact between the structural concrete slab and service materials projecting through the insulation". This then put the defenders on notice that part of the pursuers' claim related to the location of the services relative to the floors' construction. The only services were the water pipework and electrical cabling. The claim included, therefore, a complaint about the installation of these services. Reading on to the averments of breach of contract and fault, the duties laid upon the first defenders were said to be those of providing plans and specifications sufficient to install the floor. The duties laid upon both defenders were those of inspection of the flooring systems during installation. The nature of these duties were made clear even if their legal bases were, looking solely to the pleadings, obscure.

[31] When a comparison is carried out first in relation to the essence of the defects now complained about relative to the water pipework and electrical cabling, the allegation remains that they were wrongly located, notably in relation to the insulation. It is certainly true that the pursuers have expanded their case to explain why, in terms of the regulations and written guidance, the services are wrongly located but it is that location which remains the centre of the claim. In that regard, the specification of the need for higher capacity cabling in terms of the regulations is still related to the location of that cabling since, were it not positioned where it was, such capacity would not be needed. When a comparison is made of the duties alleged to have been breached, these remain essentially those of failure on the part of the first defenders to provide adequate instructions relative to the installation, including the location of the services, and failure on the part of both defenders to detect problems visible upon inspection. In that regard, it is no doubt possible to describe compliance with regulations and defective workmanship as different in certain contexts. For prescription purposes, however, the exercise of dividing the defenders' duties to detect problems upon inspection into two different species falls foul of the Lord President's caution in Devos Gebroeder v Sunderland Sportswear (supra) against approaching matters from a technical viewpoint. Although the pursuers have introduced relatively detailed new averments concerning breaches of wiring and building regulations and bylaws, these do not attempt to make out a case beyond that already pled to the effect that the cabling and pipework should not have been located where it was and this ought to have been noticed upon inspection.

[32] In short, in relation to both the defects averred and the duties breached, the case against the defenders remains fundamentally the same. On that basis I will: (1) repel the first defenders' third plea-in-law and the second defenders' fifth plea-in-law; (2) remit the cause to the Procedure Roll on the first defenders' motion (the pursuers and second defenders having offered a proof before answer); and (3) appoint all parties to lodge Notes of Argument in respect of their preliminary pleas within twenty eight days.

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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 & Anor [2001] ScotCS 279 (4 December 2001) URL: http://www.bailii.org/scot/cases/ScotCS/2001/279.html Cite as: [2001] ScotCS 279

Scottish Court of Session Decisions