Jane Forrest (ap) Against Fleming Buildings Limited And Another
| Jurisdiction | Scotland |
| Judge | Lord Tyre |
| Neutral Citation | [2015] CSOH 90 |
| Court | Court of Session |
| Date | 10 July 2015 |
| Published date | 10 July 2015 |
| Docket Number | CA41/11 |
| Year | 2015 |
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 90
CA41/11
OPINION OF LORD TYRE
In the cause
JANE FORREST (AP)
Pursuer;
against
FLEMING BUILDINGS LIMITED AND ANOTHER
Defenders:
Pursuer: Gale QC, Mohammed; TLT LLP
First Defenders: Broome; MacRoberts LLP
Second Defenders: G Walker; Simpson & Marwick
10 July 2015
Introduction: background to the present action
[1] In 2005 the pursuer and her estranged husband, William Forrest, instructed the first defenders to build a house at 17 Fairyknowe Gardens, Bothwell, Lanarkshire. They also instructed the second defenders, Gibb Architects Limited, to provide architectural services. The building contract had a completion date of 7 August 2006. The contract price was £513,791.03; however the pursuer avers that certain additions were agreed and certain works omitted, giving an adjusted contract sum of £439,356.03.
[2] As the contract progressed, the pursuer and Mr Forrest made payments to the first defenders following valuations by the second defenders. The total paid is averred to have been £415,762.75. However, the pursuer and Mr Forrest became dissatisfied with the rate of progress and with the quality of the works. Expert reports were obtained and lists of alleged defects prepared. Work by the first defenders ceased without the house having been completed. Relations deteriorated between the pursuer and Mr Forrest on the one hand and the second defenders on the other. By letter dated 20 April 2007 the second defenders’ appointment was terminated with 14 days’ notice. During the period of notice, the second defenders issued two certificates (11 and 12) valuing the first defenders’ works at £462,985 and £508,000 respectively.
[3] The history of the parties’ dispute since then has been one of protracted litigation. On 17 July 2007, the first defenders served a notice of adjudication on the pursuer and Mr Forrest. On 26 September 2007, the adjudicator decided that the pursuer and Mr Forrest were to pay the first defenders the sum of £112,598.75, plus interest and expenses, within seven days of the date of the decision. No payment was made. In October 2007, the first defenders raised an action for payment in this court. The action was defended on the ground that the first defenders’ contract had been with a company called KWF Homes Limited and not with the pursuer and Mr Forrest. An 8-day preliminary proof was held in March and May 2008, after which Lord Menzies held ([2008] CSOH 103) that the first defenders’ contract had been with the pursuer and Mr Forrest, and granted decree for payment of the sum found due by the adjudicator plus interest and the adjudicator’s fees. The pursuer and Mr Forrest reclaimed. By interlocutor dated 10 February 2010 ([2010 CSIH 8), an Extra Division refused the reclaiming motion. The pursuer sought to appeal to the Supreme Court but her appeal was dismissed in October 2010 for procedural default consisting of a failure to lodge security and a statement of facts and issues.
[4] On 28 October 2010, the first defenders presented a petition in Hamilton Sheriff Court for sequestration of the pursuer. The proceedings were defended, and on 18 May 2011 the petition was dismissed after the pursuer entered into a Debt Arrangement Scheme. Payments due under the scheme were not made and the DAS payment programme was revoked in July 2012.
History of this action
[5] On 8 November 2010, the pursuer raised the present action, initially against the first defenders alone. She concluded for reduction of the second defenders’ certificates nos 11 and 12 and of a decision to award the first defenders an extension of time (Conclusion 1), plus damages (Conclusion 2). By interlocutor dated 25 March 2011, on the unopposed motion of the pursuer, the action was transferred to the commercial roll. Her claim was subsequently amended to seek damages in terms of Conclusion 2 against the first and second defenders jointly and severally, together with a second and separate claim for damages against the second defenders alone (Conclusion 3).
[6] Motions for caution were enrolled by both defenders. On 29 June 2011, Lord Glennie heard and granted both motions, ordaining the pursuer to provide caution for expenses, within six weeks, in the sum of £20,000 to each of the defenders. Lord Glennie directed that there was to be no procedure in the action until further order of the court. There then followed a protracted period during which the pursuer failed to lodge caution, and numerous prorogations of the time for lodging caution were granted by the court against opposition by the defenders. Between 8 December 2011 and 16 August 2012 the action was sisted. On 31 August 2012 Lord Malcolm refused a motion by the pursuer to reclaim Lord Glennie’s interlocutor of 29 June 2011. By June 2013 no progress had been made, with various motions by the defenders seeking absolvitor having been refused. However, on 12 December 2012 the pursuer was granted legal aid, and attempts by the defenders to have the decision to grant legal aid reviewed by the Scottish Legal Aid Board were unsuccessful.
[7] On 21 June 2013, Lord Hodge recalled Lord Glennie’s order to provide caution. Lord Hodge held ([2013] CSOH 105) that the grant of legal aid was a relevant change of circumstances and that it was appropriate in the interests of justice to recall the order for caution. However, Lord Hodge observed (paragraph 16):
“I wish to point out that the pursuer cannot expect that the court in managing the progress of the action will show her the indulgence which she has been shown in the past. Her advisers will be expected to come forward with proposals to conduct the litigation in an efficient and cost-effective manner, such as, where appropriate, the remit of disputed matters of fact to a man of skill, and the court will be astute to prevent unnecessary expense.”
Motions by the defenders to reclaim Lord Hodge’s interlocutor were refused.
[8] The way now appeared to be clear for the action to proceed on its merits, albeit two and a half years after it had been commenced, and seven years after the events with which it was concerned. It is appropriate therefore now to set out in a little more detail the basis of the pursuer’s claim on record. The case against the first defenders is that the building works were defective. Reference is made in the pursuer’s pleadings to a report dated 5 March 2011 and updated in February 2014 by Mr Donald Canavan, architect, a senior consultant of the Hurd Rolland Partnership. A large number of alleged defects are identified. The case against the second defenders is (i) that they were in breach of contract in issuing certificates 11 and 12 and granting an extension of time, and separatim for doing so after their engagement had been terminated; and (ii) that they were negligent in their administration of the building contract. The pursuer has encountered considerable difficulty in quantifying her claims against each of the defenders; I return to this below.
[9] On 8 October 2013 the case called before me for a continued preliminary hearing. Both defenders indicated that they had arguments on the merits and on quantum that they wished to debate. The pursuer was given time for further adjustment and an order was made appointing parties and their experts to meet to attempt to narrow the issues in dispute. A procedural hearing was fixed for 14 January 2014. When the case called before me on that occasion, the pursuer was represented by Mr Gale QC who had only recently been instructed due to delays in obtaining legal aid for the employment of senior counsel. Mr Gale explained that he had advised the pursuer that further investigations on quantum were needed, and accepted that substantial amendments were required to the pleadings. No documents had been lodged by the pursuer in accordance with RCS 47.12, and no meeting of parties and/or their experts had taken place. I allowed a further period of adjustment and prorogated until 18 March 2014 the time for the lodging of a joint note of a meeting of experts. A one-day diet of debate was fixed for 6 May 2014. The date for that debate was subsequently amended to 25 June 2014.
[10] On 25 June 2014 the case called for debate before Lord Malcolm. Mr Gale advised the court that the pursuer had withdrawn his instructions. A motion by the pursuer in person to discharge the diet of debate was refused. Lord Malcolm proceeded to hear submissions with the pursuer representing herself. On 29 October 2014, Lord Malcolm delivered his opinion ([2014] CSOH 158), and pronounced an interlocutor excluding from probation a claim by the pursuer for damages for stress and anxiety but otherwise refusing the defenders’ respective motions for dismissal of the action as a whole. On certain matters mainly concerning the merits of the action, Lord Malcolm expressed the view that the pursuer had made sufficient averments to entitle her to proof before answer, especially in a commercial action. On certain other matters mainly concerning quantum, Lord Malcolm observed that it would be incumbent upon the pursuer to provide further specification and vouching of her case, and that she would have an opportunity to do so prior to any proof. A by order hearing was fixed to address an issue of whether Mr Forrest should be sisted as an additional pursuer in the action.
[11] That hearing took place before me on 9 December 2014. After hearing argument, I refused a motion to sist Mr Forrest as an additional pursuer on the ground that the application was being made long after expiry of the quinquennium. Mr Gale, re-instructed on behalf of the pursuer, also sought and was granted leave to delete an article of condescendence in which the pursuer claimed title to sue based upon an assignation by Mr Forrest. It was then contended on behalf of the defenders that the refusal of the motion to sist Mr Forrest as a party and the deletion of the case based on assignation...
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Defects
...agreed to pay. See also Ng Boo Han v Teo Boon Hiang Edward [2014] SGhC 267 at [61], per Edmund Leow JC; Forrest v Fleming Buildings Ltd [2015] CSOh 90 at [23], per Lord Tyre; ren, “Measure of damages for defective building work” (2014) 32 Journal of Contract Law 69. 306 East Ham Corporation......