Anm Group Limited V. Gilcomston North Limited And Others
| Jurisdiction | Scotland |
| Judge | Lord Emslie |
| Neutral Citation | [2008] CSOH 90 |
| Published date | 20 June 2008 |
| Docket Number | A861/02 |
| Court | Court of Session |
| Date | 20 June 2008 |
| OUTER HOUSE, COURT OF SESSION [2008] CSOH 90 | |
| A861/02 | OPINION OF LORD EMSLIE in the cause ANM GROUP LIMITED Pursuers; against GILCOMSTON NORTH LIMITED and OTHERS Defenders: ________________ |
Pursuers: Ellis, Q.C.; Beveridge & Kellas
Second Defenders: Howie, Q.C.; MacRoberts
Third Defenders: Lake; Simpson & Marwick
Fourth Defenders: Higgins; Brodies LLP
20 June 2008
Introduction
[1] The pursuers in this action own and operate an agricultural centre and auction mart known as the Thainstone Centre, near Inverurie, Aberdeenshire. The Centre comprises a complex of interconnected spaces serving a range of functions essential to the pursuers' business. The offices and sales ring concourse ("the concourse") occupies an area of about 55 x 60 metres; the lairage in which animals are penned is even larger, at about 110 x 75 metres; whereas the former general purposes hall was much smaller and, in terms of area, represented no more than about 5 per cent of the Centre as a whole. The general purposes hall was demolished in around 2003, and has never formed part of the pursuers' present claim.
[2] In these proceedings the pursuers claim substantial damages from the compearing defenders, all of whom played a part in the design and construction of the Centre in the late 1980s/early 1990s. As architects for the project the third defenders were responsible for inter alia the design of the Centre (including the specification of materials), for contract administration and co-ordination, and for the provision of advice and information to the pursuers. Apparently under subcontract to the third defenders, the fourth defenders were the consulting engineers on the project, undertaking both standard and additional duties in that connection. The second defenders were one of three different sets of contractors engaged to carry out construction works, including external roof and wall cladding, and undertook the latter through the first defenders as sub-contractors.
[3] The damages claimed by the pursuers relate to widespread and serious roofing failures over those parts of the Centre which remain in existence, namely (i) the concourse and (ii) the lairage. Articles 4-16 of the Condescendence contain detailed averments of the nature and cause of these failures, and Articles 18-20 spell out the breaches of duty alleged against the second, third and fourth defenders respectively. As disclosed on Record, the second defenders are sued in contract only; the fourth defenders primarily in delict; and the third defenders in both contract and delict.
[4] For their part, the respective defenders deny liability on the merits of the claim, and in addition maintain that any obligation to make reparation to the pursuers has been extinguished by operation of the five-year prescription under sections 6 and 11 of the Prescription and Limitation (Scotland) Act 1973, as amended. A preliminary proof before answer on the issue of prescription has now taken place in two distinct stages. Four days of evidence followed by initial submissions were heard towards the end of 2006 by the late Lord Dawson shortly before his untimely death, and the remainder of the proof has now been completed before me in February and March 2008 pursuant to arrangements sanctioned by the Inner House under Rule of Court 36.13.
The disputed issues
[5] In summary, the parties are in dispute on three main questions. First, having regard to the apparent cause, development and progression of the roofing problems affecting the Centre, were the requirements of section 11(1) of the 1973 Act satisfied so as to warrant the running of prescription from a date more than five years prior to the raising of the present action in 2002? Second, if so, was the running of prescription delayed, pursuant to section 11(3) of the Act, during any period when the pursuers were not aware, and could not with reasonable diligence have been aware, that loss, injury and damage caused by some relevant act, neglect or default had been sustained? And third, by reference to section 6(4) of the Act, was the running of prescription to any extent delayed or interrupted by error on the pursuers' part induced by the third defenders as their professional advisers after relevant roofing problems began to emerge in 1996?
[6] According to the defenders, the existence of material roofing problems known to the pursuers by late 1996/early 1997 was sufficient to start the running of prescription against them at that time. This was more than five years before the present action was raised against the second and third defenders in early April 2002, and against the fourth defenders on 25 July 2002. Although such problems manifested themselves in different areas at different dates, their nature and cause were substantially identical throughout. Having regard to the known emergence of such problems leading to progressive water penetration in the general purposes hall from September/October 1996 onwards, the pursuers were by April 1997 either aware, or could with reasonable diligence have been aware, of all matters relevant to the obligation to make reparation which they now asserted against each of the defenders. At no time were the pursuers under error on any of these matters, nor was any error on their part induced by any act or omission of the third defenders.
[7] In response, the pursuers' position was that although they were admittedly aware of roofing problems leading to water penetration in the general purposes hall in and after September/October 1996, they did not appreciate the existence of a potential cause of action against anyone until a much later date. Moreover, even with reasonable diligence on their part, it was not until dates between late 1997 and 1999 that they became aware of similar roofing problems in the concourse and lairage respectively. These dates were well within the period of five years immediately preceding the raising of this action. Significantly, the present claim was restricted to problems affecting the concourse and lairage alone, the general purposes hall having first been over-roofed and then demolished in 2003. In addition, to the extent that the pursuers' ignorance of the true situation during any period more than five years before the raising of the present action was attributable to error induced by the third defenders, no question of prescription could properly arise in a question with them.
Preliminary legal points
[8] It is convenient at this stage to deal with a number of preliminary legal points that were raised at the hearing before me. These were as follows:-
(a) Onus of proof:
In broad terms the parties were agreed that the onus of proving prima facie prescription under section 11(1) of the Act - a phrase borrowed from the speech of Lord Millett in BP Exploration Operating Co Ltd v Chevron Shipping Co 2002 S.C. (H.L.) 19, at para [97] - lay upon those (here the defenders) by whom pleas of prescription were advanced. Conversely, on any issue regarding lack of awareness for the purposes of section 11(3), or regarding error for the purposes of section 6(4), the onus of proof lay on the pursuers. In Sinclair v MacDougall Estates Limited 1994 S.L.T. 76, the first of these issues was resolved by concession, but in Strathclyde Regional Council v WA Fairhurst & Partners 1997 S.L.T. 658 Lord Abernethy (at pp.660-3) specifically held that the defenders, as the party positively asserting prescription under sections 6 and 11(1) of the Act, must accept the onus of proving facts and circumstances sufficient to justify their plea. The pursuers' onus under section 11(3) was more recently affirmed by Lord Macfadyen in Britannia Building Society v Clarke 2001 S.L.T. 1355.
In my view the parties' agreement on these related issues was well founded, and in particular I accept that the decision in Strathclyde Regional Council settled any uncertainty as to which party must bear the onus of proof in connection with prima facie prescription for the purposes of section 11(1) of the Act.
In that latter context, however, senior counsel on behalf of all of the defenders argued that the pursuers' pleadings in this case should be held to relieve the defenders of any further onus of proof. I do not doubt that the concurrence of damnum and iniuria for the purposes of section 11(1) may be made a matter of judicial admission so as to render further proof unnecessary. Indeed such a possibility was envisaged by Lord Fraser in Pirelli General Cable Works Limited v Oscar Faber & Partners 1983 2 A.C. 1. In the present case, however, I am unable to identify any such admission, whether express or implied. Senior counsel's argument was to the effect that since almost the whole of Condescendence 22 comprised averments referable to sections 11(3) and 6(4), and since such matters were not pled on an esto basis, this must be taken to indicate tacit acceptance by the pursuers that their claims had prima facie prescribed under section 11(1).
In my opinion, that argument must be rejected as unsound. Condescendence 22 contains no judicial admission relative to the application of section 11(1). On the contrary, it includes (at p.49A) a general denial of the defenders' averments on prescription, followed inter alia by the averment:
"The pursuers did not suffer problems with the relevant roofs until August 1997".
Similar averments appear elsewhere on Record, notably in Condescendence 4 at p.19C-D, and I do not see how these important features of the pursuers' pleadings can, for present purposes, be ignored or treated as if they had no weight. It would, I think, be strange if greater significance were to be accorded to the absence of the word "esto" as an introduction to the pursuers' averments on sections 11(3) and 6(4) than to the absence of any judicial admission referable to section 11(1), or to the presence of an express denial and positive assertions in that regard.
(b) Effect of the defenders having...
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