Brian And Jean Gray V. William Welsh
| Jurisdiction | Scotland |
| Judge | Lord Turnbull |
| Neutral Citation | [2007] CSOH 64 |
| Date | 23 March 2007 |
| Docket Number | "I/We |
| Court | Court of Session |
| Published date | 23 March 2007 |
| OUTER HOUSE, COURT OF SESSION [2007] CSOH 64 | |
| OPINION OF LORD TURNBULL in the cause BRIAN and JEAN GRAY Pursuers; against WILLIAM WELSH Defender: ________________ |
Pursuers: Richardson; Pinsent Masons
Defender: McIlvride; Gillespie MacAndrew
23 March 2007
Introduction
[1] In 2004 the defender was the owner of a housing development at an area known as Holmwood Park, Crossford, Lanarkshire. The development is situated at the confluence of the River Nethan and the River Clyde.
[2] The pursuers, who are married, entered into an agreement for the purchase of a plot and house at the development. At the time of the agreement the house had not been constructed. Their agreement was for the purchase of what was referred to in plans produced by the defender as Plot 9. In due course the pursuers took occupation of the house as constructed, with the address 5 Holmwood Park. The pursuers' plot is bounded to the north by the River Clyde. In the present action the pursuers claim damages in consequence of certain defects which they allege are present in the formation of their garden ground resulting in erosion and collapse into the adjoining river. Their claim is said to arise out of breach of contract and delict. The case called before me on the defender's first plea-in-law to the effect that the pursuers' averments were irrelevant and lacking in specification to the extent that the action fell to be dismissed.
The Pursuers' Case
[3] The pursuers' case as pled on record can be summarised as follows. In article 2 of condescendence the pursuers aver that they entered into Missives with the defender by letters dated 16 and 21 April and 6 May 2004. They also aver that prior to the conclusion of Missives they had various discussions with a Mr Tony Munsey. It is averred that these discussions included certain variations to parts of the house and garden, including the layout of the garden to be constructed on the plot. It is averred that these variations were agreed to by Mr Munsey on 18 March 2004 by his signature on a letter from the pursuers of that date. The pursuers aver that the defender acted and allowed Mr Munsey to act in such a manner that it was reasonable for them to infer that the defenders had authorised Mr Munsey to act for him in these matters. In these circumstances the pursuers claim that the variations discussed with Mr Munsey became part of the agreement entered into between themselves and the defender.
[4] In article 3 of condescendence the pursuers aver that there was implied into the Missives a term to the effect that the dwelling house and any garden ground pertaining thereto would be built to reasonable workmanlike standards and free from such defects as would render it as unsafe or unsuitable for occupation as a domestic dwelling.
[5] In article 4 of condescendence the pursuers aver that the garden of their property and the gardens of the neighbouring properties at numbers 11, 9 and 7 Holmwood Park ("the Neighbouring Properties") were formed by the defenders from made ground to a depth which is given. This combined area is referred to thereafter as the "Made Ground". The pursuers aver that the Made Ground is defective.
[6] In article 5 of condescendence the pursuers aver that in about October of 2004 the Made Ground slumped down towards the River Clyde and that in about January 2005 it was further disturbed and subject to movement. They also make further averments concerning the content of the Made Ground and its stability.
[7] In the following articles of condescendence the pursuers make various averments concerning expert reports instructed by themselves and their neighbours and various remedial works carried out at certain locations by the defender. In article 8 they set out they way in which they say the defender has acted in breach of the Missives and in breach of duty. In article 9 they set out the quantification of their claim.
The Defender's Response
[8] The defender's response as pled can be summarised as follows. The defender admits that he was the owner of the plot and that he had no direct contact with the pursuers prior to conclusion of the Missives. He explains that Mr Munsey is a director of Welsh Munsey (Developments) Limited ("WMD"), and that he contracted with that company for the construction of the pursuers' house and the formation of garden ground between the house and the river. He explains that the sales and marketing for the site was carried out by WMD and that literature and site signs made it clear that WMD were carrying out the development. The defender avers that Mr Munsey acted as a director of WMD and not on his behalf. He avers that the Missives contain no obligation upon him to form garden ground and that any work to the garden ground was carried out by WMD.
[9] The defender goes on to accept that the gardens of some neighbouring properties to that of the pursuers were subject to movement in October 2004 and that certain remedial works to such properties were carried out. He further avers that the pursuers have suffered no loss.
The Defender's Submissions
[10] Mr McIlvride, who appeared for the defender, moved me to sustain his first plea-in-law. He presented three submissions in support of his motion:
i. That the pursuers had failed relevantly to aver either a breach of duty, contractual or delictual, or any damage actually resulting from any such breach of duty.
ii. That in any event the pursuers averments to the effect that the defender contracted to erect or build a garden were irrelevant and the pursuers' contractual case ought to excluded from probation.
iii. That in any event the pursuers' averments to the effect that Mr Munsey acted as the defender's agent were irrelevant and ought to be excluded from probation.
[11] In seeking to advance his first submission Mr McIlvride sought to emphasise that a pursuer is obliged to aver the full facts which result in the establishment of his case. In doing so he sought to identify the limited set of circumstances in which an averment as to a state of mind or belief might be relevant and to contrast those circumstances with the present pleadings. By way of example he drew my attention to the limited application of the formula "believed and averred" as explained in Brown v Redpath Brown & Company Limited 1963 SLT 219.
[12] Accordingly, he submitted, it was not sufficient for the present pursuers to narrate their own or anyone else's opinion on essential aspects of their case. It was necessary to aver a state of facts which they offered to prove. With this introduction Mr McIlivride then took me to various averments within articles 4, 5, 6, 7 and 8 of condescendence which he submitted were defective.
[13] In article 4 he referred me to the averment that:
"The Made Ground had not been formed from materials selected and compacted in accordance with conventional engineering specifications. Accordingly the Made Ground is defective."
He submitted that there was no averment as to what conventional specifications were or in what way the composition deviated from the norm. He submitted that there was no notice of what the pursuers were seeking to prove.
[14] In article 5 Mr McIlvride referred me to the following four passages which he subjected to criticism:
i. "In about October 2004 the gardens of the Neighbouring Properties was (sic) disturbed and subject to movement. The Made Ground slumped down towards the River Clyde."
This averment he said related to properties other than the pursuers and there was no specification of the extent to which the Made Ground was said to have slumped.
ii. "In or about January 2005, following a period of high rainfall, the Made Ground was further disturbed and subject to movement. A significant tension crack, running parallel with the River Clyde was formed in the garden of number 7 Holmwood Park. Said tension crack had the bowl shape of a circular arc failure."
Again he submitted that there was no specification as to which part of the Made Ground was further disturbed and asked whether it was the garden of number 7 as that was where the crack was said to have been located.
iii. "A number of transverse 150mm diameter plastic drainage pipes leading to the River Clyde were disturbed by the ground movement."
Again he pointed out that there was no specification as to where in the Made Ground these pipes were disturbed. He submitted that in relation to each of these averments it was to be noted that the pursuers were not offering to prove that these events were occurring in their garden.
iv. "The stability of the Made Ground is dependant upon ground water influences and on the uniformity of the engineering properties of the soils. The soils which form the Made Ground are predominately granular or have a high granular content. Said soils encourage the rapid permeation of ground water when the water level in the River Clyde is high. Accordingly the Made Ground is susceptible to river level fluctuations and other ground water influences. When the water level in the River Clyde drops rapidly and there is a slower fall in the level of ground water, the Made Ground becomes unstable."
Here Mr McIlvride explained that the defender's complaint was that the pursuers were not averring what other materials could or should have been used, what materials the reasonably competent builder would have used or in what way the composition deviated from normal standards.
[15] In article 6 of condescendence Mr McIlvride referred me to the averments relating to the instruction of a firm of Consulting Engineers, W A Fairhurst and Partners and to their report dated February 2005. He pointed out that what one finds in this article of condescendence is an expression of the various views which that firm arrived at concerning the Made Ground, rather than averments as to matters of fact relating to the Made Ground.
[16] In article 7 of condescendence there are averments relating to a second...
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