Albert Bartlett And Sons (airdrie) Limited+atlas Ward Structures Limited V. Gilchrist & Lynn Ltd+briggs Amasco Limited
| Jurisdiction | Scotland |
| Judge | Lord Hardie,Lord Osborne,Lord Carloway |
| Neutral Citation | [2010] CSIH 33 |
| Court | Court of Session |
| Published date | 28 April 2010 |
| Year | 2010 |
| Date | 28 April 2010 |
| Docket Number | CA98/07 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Osborne Lord Carloway Lord Hardie | [2010] CSIH 33 CA98/07 OPINION OF THE COURT delivered by LORD CARLOWAY in the reclaiming motion by ALBERT BARTLETT & SONS (AIRDRIE) LTD., Pursuers and Reclaimers against GILCHRIST & LYNN LTD., Defenders and Respondents and ATLAS WARD STRUCTURES LTD., First Third Parties and BRIGGS AMASCO LTD., Third Parties to the First Third Parties _______ |
Defenders & Respondents: Howie QC, GJ Walker; Wallace Construction Law
First Third Parties : Howie QC, GJ Walker; Simpson & Marwick
Third Parties to the First Third Parties : Howie QC, GJ Walker; Semple Fraser
28 April 2010
[1] The only outstanding issue in this reclaiming motion against the commercial judge's interlocutor of 8 October 2009 relates to the award of the expenses of the proof made in favour of the first third parties and their third parties against the pursuers.
[2] The pursuers raised the action against the defenders, claiming some two million pounds in damages in respect of the defective design and construction of the roof over their new potato processing and packing plant in Airdrie. The defenders had been contracted by the pursuers to design and construct the plant, including the roof. In its finished state, the roof leaked. The pursuers' contention was that it required to be entirely over-cladded and not simply repaired. The defenders' response to the summons was to introduce two third parties into the action; the first third parties (Atlas Ward) being the nominated sub-contractors for the design and construction of the roof. The first third parties in turn introduced their own third parties (Briggs Amasco), to whom they had sub-contracted the roofing works.
[3] Although the defenders disputed quantum of damage in general, it was Briggs Amasco who made a positive case that the roof could be adequately repaired by using a particular coating system bearing the trade name Kemperol. The defenders and Atlas Ward adopted Briggs Amasco's averments about the utility of the Kemperol system.
[4] By interlocutor dated 6 October 2008, the commercial judge allowed the parties a proof before answer. At a procedural hearing on 17 November 2008, the pursuers' first plea-in-law, relating to the defenders' liability to pay damages for breach of contract, was sustained of consent. The only issue therefore between the pursuers and the defenders was quantum of damage. Since the pursuers did not direct any case against any of the third parties, that remained the only issue involving the pursuers.
[5] In an interlocutor following upon a motion roll of 13 January 2009, it was recorded that: "... it has been intimated to the court that contributions as between the defenders, Atlas Ward ... and Briggs Amasco ... has been agreed ...". Thereafter these parties were all represented by the same counsel, although they each continued to have separate agents. In a communication recorded in the Interlocutor Sheet and dated 27 January 2009 it was noted that: "... parties have intimated to the Court that the issue of liability as between the defenders and the various third parties ... has been agreed ...". This related to the residual case involving the second third parties. By this time, the proof diet had been re-scheduled to commence on 9 February 2009. The second third parties were assoilzied, in terms of a Joint Minute between the defenders and the three third parties, by interlocutor dated 19 February 2009; by which time the proof, which lasted some nine days, appears to have been completed and the commercial judge had made avizandum.
[6] Although the interlocutor of 13 January 2009 had recorded that there was an agreement between the defenders, Atlas Ward and Briggs Amasco, which settled all their differences, this does not appear to have been expressed in any joint minute. Nor was any agreement followed by a formal interlocutor recording the consequence of the resolution of their dispute. Despite the absence of any conflict between these three parties and the absence of any case directed by the pursuers against any of the third parties, both Atlas Ward and Briggs Amasco remained in the process. At the proof, the same counsel expressly represented each of the defenders, Atlas Ward and Briggs Amasco, although, as before, they continued to have separate agents.
[7] During the proof, the pursuers called seven witnesses, including Iain Fergusson, a chartered architect, and John Gallagher, a chartered surveyor, each of whom favoured the over-cladding solution. The commercial judge recorded in his Opinion that it was both the defenders and third parties who called Keith Roberts, a chartered civil and structural engineer, and Thomas Blois-Brooke, a consulting engineer. Both of these witnesses had originally been instructed for Briggs Amasco. The defenders' own expert, Jack McKinney, was not called. The Court was informed that the two experts called had both been paid by the third parties.
[8] On 8 October 2009, the commercial judge determined that the appropriate measure of damages was by reference to the Kemperol system and that over-cladding would be an unreasonable measure of loss. He preferred the evidence of Mr Roberts and Mr Blois-Brooke to that of Mr Fergusson and Mr Gallagher. On the question of the expenses of the proof, which were treated as a discrete element in...
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