John G Sibbald And Son Ltd Against Douglas Johnston And The Firm Of Dmj Associates
| Jurisdiction | Scotland |
| Judge | Lord Tyre |
| Neutral Citation | [2014] CSOH 94 |
| Year | 2014 |
| Docket Number | CA44/13 |
| Court | Court of Session |
| Published date | 03 June 2014 |
| Date | 03 June 2014 |
| OUTER HOUSE, COURT OF SESSION
| |
|
| [2014] CSOH 94
|
| CA44/13
| OPINION OF LORD TYRE
in the cause
JOHN G SIBBALD & SON LIMITED
Pursuer;
against
DOUGLAS JOHNSTON
First Defender; and
THE FIRM OF DMJ ASSOCIATES
Second Defenders:
___________
|
Pursuer: Mohammed; McClure Naismith LLP
Defender: Duthie; Simpson & Marwick
3 June 2014
Introduction
[1] The pursuer is a development company. The second defenders are a firm of consulting engineers. This action concerns a contract to design a vehicular bridge within the Limefield Estate, West Calder, West Lothian. By an agreement dated 23 April 2003, the pursuer appointed the first defender, in his capacity as a partner or sole principal of the second defenders, to provide various professional services including the following:
“Design and specify: the new bridge over Harburn Water, repair works to old bridge as agreed with Highways, all roads (to be adopted and private), servicing provision for gas/water/electricity/drainage/telecom, pumping station. All to comply with planning requirements, Road Construction Consent, Building Control, Insurers, NHBC and all other interested parties.”
[2] The bridge was constructed in about the early part of 2004. The pursuer avers that the design of the bridge was defective in certain significant respects. On 28 June 2004, West Lothian Council (“WLC”) wrote to the pursuer expressing a number of concerns regarding both the design and the construction of the bridge, including the adequacy of the load bearing strip. On 9 July 2004, WLC wrote to the defenders stating that the bridge as constructed differed significantly from the design drawing that had previously been approved by them. Investigations were carried out in the course of the following year and, on 20 May 2005, WLC wrote to the pursuer listing outstanding issues including matters related to design, and advising that the bridge would not be adopted by the Council unless the issues raised were dealt with satisfactorily.
[3] The pursuer now avers that it has suffered loss and damage as a consequence of various breaches of duty by the defenders. In summary, those breaches are said to be:
- failure to obtain the consent of WLC in respect of the bridge design and to have the design certificate and check certificate approved and countersigned by WLC;
- failure to inform the pursuer that the bridge was being constructed without approval of the design by WLC;
- failure to exercise reasonable skill, care and diligence in designing the bridge, and in particular failure to specify an adequate load bearing strip;
- failure to ensure that the bridge was constructed to adoptable standard.
The losses which the pursuer claims to have sustained as a consequence of these alleged failures include the cost of remedial works, the cost of temporary diversion of services using the bridge, the cost of re-submission of planning applications, and interest incurred on borrowings due to the pursuer having been unable to build and sell properties within the development because of the non-adoption of the bridge.
[4] The present action was raised on 13 March 2013. The defenders deny that they are in breach of any duty owed to the pursuer and submit, in any event, that any obligation incumbent upon them to make reparation for breach of contractual duties owed to the pursuer has been extinguished by operation of prescription under section 6 of the Prescription and Limitation (Scotland) Act 1973, the pursuer having been aware that there was an issue regarding the design of the bridge since June 2004. The case came before me for debate of the defenders’ preliminary plea of prescription.
Argument for the pursuer
[5] Section 11(1) of the 1973 Act provides that any obligation arising inter alia from breach of contract shall be regarded as having become enforceable on the date when the loss, injury or damage occurred. On behalf of the pursuer it was submitted that the commencement of the prescriptive period was delayed in the present case by the operation of section 11(2), which provides as follows:
“Where as a result of a continuing act, neglect or default loss, injury or damage has occurred before the cessation of the act, neglect or default the loss, injury or damage shall be deemed for the purposes of subsection (1) above to have occurred on the date when the act, neglect or default ceased.”
This case, it was submitted, was concerned with a continuing neglect or default which had not yet ceased. The defenders were under a continuing duty to review the design of the bridge, such a duty having been re-activated when problems with the design were intimated to them in 2004. Reference was made to London Borough of Merton v Lowe (1981) 18 BLR 130 (in particular to the views of the trial judge, HH Judge Stabb QC, quoted in a commentary to the Court of Appeal decision at 133); University of Glasgow v Whitfield (1988) 42 BLR 66 (HH Judge Bowsher QC at 77); and New Islington and Hackney Housing Association Ltd v Pollard Thomas & Edwards Ltd [2001] PNLR...
To continue reading
Request your trial
-
Gabriel Politakis Against John Despenser Spencely And James Scott Limited
...present case were not continuing ones. [88] I was also reminded of the decision of Lord Tyre in John G Sibbald & Sons Limited v Johnston [2014] CSOH 94 where his Lordship said at paragraph [8]: “… The first step is to identify the act, neglect or default that is founded upon by the pursuer ......
-
Ramesh Dewan Against The Fife Council
...no question of a continuing act or default: Johnston v Scottish Ministers 2006 SCLR 5; John G Sibbald & Son Limited v Douglas Johnston [2014] CSOH 94. At best for the pursuer, there were individual but repeated acts of deliveries by the defenders. 16 Any liability in respect of deliveries p......
-
Weatherford Switzerland Trading And Development Gmbh Against Iiitec Limited
...Ministers [2006] SCLR 5; Warren James (Jewellers) Limited v Overgate GP Limited [2010] CSOH 57; and John Sibbald & Son Limited v Johnston [2014] CSOH 94 [41] Under reference to Gordon’s Trustees v Campbell Riddell Breeze Patterson LLP [2017] UKSC 75, counsel submitted that section 11(3) of ......
-
Kennedy v Royal Bank of Scotland Plc
...CSIH 81; 2014 SC 218; 2013 SLT 1141; [2014] Lloyd's Rep FC 18 Shanks v Gray 1977 SLT (Notes) 26 Sibbald (John G) & Son Ltd v Johnston [2014] CSOH 94; 2014 GWD 19–372 Warren James (Jewellers) Ltd v Overgate GP Ltd [2010] CSOH 57; 2010 GWD 17–348 Textbooks etc referred to: Davidson, F, Eviden......