Huntaven Properties Limited Against (first) Hunter Construction (aberdeen) Limited And Others
| Jurisdiction | Scotland |
| Judge | Lord Doherty |
| Neutral Citation | [2017] CSOH 57 |
| Docket Number | CA141/13 |
| Date | 30 March 2017 |
| Court | Court of Session |
| Published date | 30 March 2017 |
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 57
CA141/13
OPINION OF LORD DOHERTY
In the cause
HUNTAVEN PROPERTIES LIMITED
Pursuer
against
(FIRST) HUNTER CONSTRUCTION (ABERDEEN) LIMITED
(SECOND) AIRSIDE INSTALLATIONS LIMITED
(THIRD) GSLP9999 LIMITED
(FOURTH) GEORGE HUTCHISON ASSOCIATES LIMITED
Defenders
Pursuer: Bowie QC, Richardson; CMS Cameron McKenna LLP
First Defender: MacColl; Brodies LLP
Third Defender: S Smith QC, Mackenzie; BTO
Fourth Defender: Ferguson QC, MacPherson (Solicitor Advocate); Clyde & Co
30 March 2017
Introduction
[1] The pursuer is the proprietor of a pipe storage yard facility at Fordoun, Aberdeenshire. In 2008 - 2009 a large concrete hard standing (“the slab”) was constructed at the yard. Following its completion, defects in the slab became apparent. In this action the pursuer avers that each of the defenders is responsible for the defects. It seeks damages of £3.6 million from them jointly and severally for breach of contract, and in the cases of the first and third defenders it contends that there is also concurrent liability in delict. The second defender is insolvent. It did not enter appearance and decree in absence was pronounced against it on 16 December 2014. Each of the other defenders denies liability. Each also maintains that any obligation to make reparation to the pursuer has prescribed. The matter came before me on the commercial roll for a preliminary proof before answer on prescription.
[2] I heard evidence over the course of five days. The pursuer led evidence from Kenneth Macpherson, a chartered surveyor and a partner of Ryden; Nigel Gunner, a chartered civil engineer; Bruce Ferguson, a director of Hunting Energy Services (UK) Limited, a sister company of the pursuer; and George Scott, a retired solicitor in England and Wales who worked on a consultancy basis with the pursuer and other companies in the same group. The first defender led evidence from Mark Oakley, the first defender’s current Contracts Director; Alistair Porter, the first defender’s Surveying Director; Alexander Ogilvie, a former Contracts Director with the first defender; Kevin Oliphant, a civil engineer and former principal of the second defender; and Professor John Knapton, an independent expert engineering witness. The third defender led evidence from William Slater, a structural engineer and a director of the third defender; and Jack Bull, an independent expert engineering witness. The fourth defender led evidence from Nathan Woods, a civil engineer with the fourth defender. Signed witness statements or affidavits or (in the cases of Professor Knapton and Mr Bull) expert reports had been lodged in advance of the proof, and these were taken to stand in place of conventional examination-in-chief. In some cases, with the court’s leave, that evidence-in-chief was supplemented by further oral evidence-in-chief. On the sixth day parties prepared written closing submissions, and I then heard oral submissions on the seventh and eighth day of the diet. I am grateful to counsel for the considerable assistance which their submissions provided.
Credibility and reliability
[3] Each of the witnesses who gave evidence appeared to me to be doing his best to assist the court. I had no concerns as to the credibility of any of the witnesses. For the most part I found the evidence of the witnesses to fact to be reliable - though it will be apparent from the findings which follow that I have not accepted the entirety of each witness’s evidence. I have accepted some, but not all, of the evidence of the independent skilled witnesses (Professor Knapton and Mr Bull).
Objections
[4] During the course of the proof a number of objections were taken to the admissibility of evidence or to the line of evidence, and I admitted the evidence under reservation of competency and relevancy. Since none of the objections were insisted upon during closing submissions it is unnecessary to say more about them.
The period up to February 2010
[5] The first defender is a building contractor. The second defender was a concrete works subcontractor. The third defender is a firm of consulting engineers. It was formerly incorporated as Robertson Slater Partnership Limited. The fourth defender carries on business as specialist consulting engineers with expertise in the design of concrete slabs.
[6] The pursuer appointed Ryden LLP (“Ryden”) as contract administrator/project manager and Murray Montgomery Partnership (“MMP”) as quantity surveyors for the project. In January 2007 the pursuer appointed the third defender as consulting engineer for the project.
[7] In 2008 the construction work was put out to tender. The tender Bill of Quantities specified that the concrete in the slab was to be reinforced using steel Dramix fibres and was to have 4% air entrainment. However, alternative tenders were permissible.
[8] An air entrainment agent is an additive for concrete which allows small air bubbles to be captured within the concrete. The bubbles serve to reduce and absorb stresses arising from the freeze-thaw process of water within the concrete, increasing the durability of concrete in climates subject to freeze-thaw. Where an air entrainment agent is present it may be a discrete constituent which is added when the concrete is mixed, or it may have been included within a water reducing admixture (“WRA”) which is used as a constituent of the concrete.
[9] The first defender tendered for the construction work. As well as a tender which conformed with the Bills of Quantities it submitted alternative tenders. Alternative Tender Number 2 was for a 225mm polypropylene fibre reinforced concrete slab. The manufacturer of the polypropylene fibres was to be Grace Construction Products Limited (“Grace”). Following further discussions between the first defender, the third defender and Grace, the pursuer was advised by the third defender that polypropylene fibres were a viable alternative to steel reinforcement. The pursuer decided to proceed with the proposal to use Grace fibres.
[10] Initially the intention had been that the first defender would design the slab. Subsequently, in about April 2008, the pursuer and the third defender agreed that the third defender would carry out that task. However, ultimately the fourth defender was instructed by Grace to design the slab.
[11] On 17 July 2008 the fourth defender issued drawing QC7481/01 Revision A to Ryden and the third defender. The following day the fourth defender issued a further Revision B of the drawing to the same recipients. The drawings did not specify that there should be air entrainment in the concrete used to form the slab.
[12] On 23 July 2008 a meeting was held in the first defender’s portacabin office at Fordoun. One of the purposes of the meeting was to enable the fourth defender’s construction drawings to be finalised. The meeting was attended by Mr Oakley, Mr Oliphant, Mr Slater, Mr Woods, and by two representatives of Grace (Mr Attree and Mr Head).
[13] Mr Oliphant’s evidence was that during the meeting he queried with Mr Head why air entrainment was not included in the slab, and that Mr Head had responded that it was unnecessary. Mr Oakley provided some indirect support for Mr Oliphant’s account - he recalled that Mr Oliphant told him soon after the meeting that a Grace representative had said that air entrainment was not required with Grace fibres. Neither Mr Oakley nor any of the other witnesses who spoke to what happened at the meeting (Mr Slater and Mr Woods) recalled overhearing the exchange between Mr Oliphant and Mr Head, but the evidence was that in Mr Macpherson’s absence the meeting had not been well chaired or well structured. On occasions more than one conversation was ongoing at the same time. I accept that there was some discussion about air entrainment with Mr Head on 23 July 2008 but I have reservations as to whether Mr Oliphant’s recollection of the exchange is wholly accurate. It seems inherently unlikely that Mr Head would have made an absolute or unqualified statement. Mr Head was not called as a witness, so I do not have the benefit of his recollection of events. However, for present purposes the important point is that the pursuer was not privy to the exchange between Mr Oliphant and Mr Head or to the exchange between Mr Oliphant and Mr Oakley. Neither were Mr Slater or Mr Woods.
[14] Following the meeting on 23 July 2008 the third defender instructed the first defender to proceed on the basis of the construction drawings, which were reissued to incorporate minor alterations which had been discussed at the meeting. The first and second defenders commenced the work on site in 2008, before the formal conclusion of contracts. In fact, the contract between the pursuer and the first defender was not formally concluded until 27 and 28 July 2009. The first and second defenders concluded a subcontract on 27 July 2009 for the construction of the slab by the second defender.
[15] The slab construction was carried out in two phases. Phase 1 comprised the area between gridlines 1 and 15. It was constructed during August and September 2008. Section 1 of Phase 1 achieved practical completion on 29 September 2008. Section 2 achieved practical completion on 29 October 2008. Phase 2 commenced in about November 2008 and was completed on 11 March 2009. It comprised the area between gridlines 15 to 26. The Phase 2 concreting works were in November and December 2008 and in January 2009. The defects liability period for Phase 1 ended on 28 September 2009. The defects liability period for Phase 2 ended on 10 March 2010.
[16] By about the time of practical completion of Phase 2 the pursuer had lost confidence in the third defender. As a result, the third defender had little or no actual involvement with the project works after that date. The pursuer instructed Mr Gunner to advise it as and when it considered it required engineering advice.
[17] The slab...
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