K2 Restaurants Limited V. Glasgow City Council And Others
| Jurisdiction | Scotland |
| Judge | Morag Wise, Q.C. |
| Neutral Citation | [2011] CSOH 171 |
| Docket Number | A5093/2001 |
| Published date | 18 October 2011 |
| Court | Court of Session |
| Date | 18 October 2011 |
| OUTER HOUSE, COURT OF SESSION [2011] CSOH | |
| A5093/2001 | OPINION OF MORAG WISE QC (Sitting as a Temporary Judge) in the cause K2 RESTAURANTS LIMITED Pursuers; against GLASGOW CITY COUNCIL AND OTHERS Defenders: ________________ |
Pursuers: Murphy QC; Brodies
Defenders: Geoff J ClarkClarkee QC and B Smith; The Anderson Partnership for Hennessy Bowie & Co, Glasgow
18 October 2011
Introduction
[1] The pursuers are a company with a place of business at 235 North Street, Glasgow. They operate an Indian cuisine restaurant known as the Koh I Noor on those premises. The remaining defenders in the action are Glasgow City Council, a local authority with its headquarters in George Square. This action was raised in October 2001. For the first four years or so of its progress a demolition company, also based in Glasgow, was involved in the action as second defenders. However, on 21 December 2005, of consent, the second defenders were assolizied from the conclusions of the summons.
[2] The circumstances in which the pursuers seek damages from the defenders relate to an incident that took place on 6 November 1996. On that date, in adverse weather conditions, a portion of brickwork forming part of a gable wall and chimney flues adjacent to the pursuers' premises collapsed. Brickwork fell through the roof of the pursuers' premises, which formed the ground floor of a four storey tenement block. The first, second and third floors of the tenement had been demolished in the summer and early autumn of 1996 in accordance with a notice served by the defenders under and in terms of section 13 of the Building (Scotland) Act 1959, as amended. That notice required the owners of 229 and 235 North Street, Glasgow to carry out reinstatement works, which failing demolition of the tenement building down to the first floor level would be executed. The portion of gable wall and chimney flues that collapsed on 6 November 1996 was from the exposed gable left after the demolition had been carried out.
[3] The pursuers claim that the defenders knew or ought to have known, on completion of the demolition works, that they had left the former mutual division wall in a condition which presented a foreseeable danger to persons and adjacent property in the event of high winds. On that basis they claim that the defenders are liable to make reparation to the pursuer. In addition to defending the substance of the claim, the defenders also assert that the pursuer' right of action has prescribed. By the time of proof, there had been discussions about quantum and this was ultimately agreed in the sum of £175,000 plus interest from 6 November 1996. Accordingly, the evidence at proof related solely to the question of liability.
Evidence in the pursuers' case
[4] Four witnesses were led in the pursuers' case, Ghulam Tahir who controlled and directed the pursuers, Andrew Lightbody a chartered surveyor, Denis Garrity a solicitor and Gordon Bathgate a chartered engineer. Mr Tahir was 70 years old by the date of proof. He had taken over control of the restaurant from his father who had previously operated premises in Gibson Street in Glasgow. After the Koh I Noor moved to 235 North Street in 1983 it operated a lounge bar in addition to the restaurant premises. Mr Tahir identified the façade of the Koh I Noor as it looks today in one of the photographs number 6/20/1 of process. He also confirmed that photograph 6/20/6 illustrates how the premises looked after the collapse of the part of the wall and the chimney in 1996. There had been tenements above all of the shops in the row in which Koh I Noor is situated in 1996. These have all now been demolished. The façade of the restaurant runs from numbers 225 to 237 North Street. Mr Tahir confirmed that the tenement above the Koh I Noor had been neglected by the owners and was in a state of disrepair. There had been three flats on each of three floors but only one or two in total were occupied from 1983 onwards. The owner of the ground floor premises at 241 North Street had been a Mr Equi who owned a bookmaker that subsequently became an internet café. On being shown number 6/10/4 of process Mr Tahir recalled that there had been a section 13 notice served requiring work to be carried out to a building regarded as dangerous and that it had been served on Greenford Properties, an Isle of Man company owning the tenement above the Koh I Noor and also on K2 Restaurants. There had been an ongoing concern about the structural integrity of the tenements above the ground floor properties. Mr Tahir explained that he and Mr Equi had regularly suggested meetings but that Greenford Properties had failed to respond. In the absence of any agreement by Greenford Properties to carry out work, Mr Tahir was content with the alternative of demolition of the tenement above the restaurant to first floor level. He understood that the council would undertake that in a gradual way and he was informed that a roof would be constructed over the restaurant to the upper surface of the first floor joists of the tenement. Mr Tahir and his neighbour Mr Equi were relieved once the council became involved because Greenford Properties had consistently delayed in responding to requests. Further they were required to pay increased insurance premiums because of the derelict state of the upstairs premises. It was clear from the notices served that the works were to be carried out only in relation to the tenement above that part of the Koh I Noor that ran from numbers 229-235 and not beyond. Mr Tahir confirmed that photograph number 6/20/6 showed the gable wall that remained after the demolition of the tenement above 229-235 North Street. The photograph had been taken after the collapse of a portion of that gable wall. On being shown a letter from the defenders planning department number 6/18/65 of process Mr Tahir agreed that the demolition work had started on 11 July 1996. The collapse had occurred after the first stage of demolition and shortly thereafter the defenders had taken the decision to demolish also the tenement above Charlie's Bar (next to the Koh I Noor and Mr Equi's premises). The photograph 6/20/1 of process showed the premises after the second demolition. A system of tying metal work along the edges of the gable wall is shown in that photograph. Mr Tahir confirmed that no such tying in had been done after the first demolition. He thought that had such tying in been carried out there would have been no problem. He confirmed that to the best of his recollection the condition of the tenements above number 239 was as poor as the flats above the tenement demolished in the summer of 1996. They had also become derelict through lack of occupation over a long period of time. Mr Tahir was taken through number 7/2 of process, the land certificate confirming the title of 225-239 North Street. There had been a common right of property to the solum for all the proprietors in the block. Prior to the demolition being carried, a number of concerns had been expressed by Mr Tahir and Mr Equi in relation to the state of the building. Those concerns were expressed by the architect Ian Rae who has since died. Number 6/12/1 of process is a letter from Mr Rae dated 1 September 1994 enclosing a copy of the section 13 notice. In another letter from Mr Rae, number 6/12/2 of process, he referred to the south gable being "... clearly in a state of progressive collapse." Further, in a statement for the planning sub-committee on building control (number 6/12/4 of process) Mr Rae drew to the council's attention that number 237 North Street was in an equally bad state and the demolition of number 229 might have a serious effect on the stability of the flats above the adjacent premises. These concerns were reiterated in a letter of 4 November 1995, number 6/12/8 of process and in further correspondence at number 6/12/9 of process, also referring to the adverse structural effect on the flats that would remain after demolition. Mr Tahir confirmed that Mr Rae's concerns had been that if the gable wall was not shored up properly then it would be dangerous and unstable. Those concerns had been raised with the council on Mr Tahir's behalf but he had received no response. Mr Rae had been instructed to advise on plans for the new roof of the Koh I Noor and had been enlisted to assist with making representations about the stability of the mutual gable walls after demolition.
[5] Mr Tahir had no recollection of receiving any response from the council in relation to the concerns raised. A letter number 6/14/20 of process confirmed that the council's position was that the maintenance of the structural integrity of the building after the works were carried out was for the proprietors. A letter of 11 June 1996, number 7/4 of process, was also put to Mr Tahir which referred to treatment works to the exposed gable to be carried out by the co-proprietors and indicating that these were to be organised by the pursuers. Mr Tahir confirmed that all correspondence at the time had been passed to the architects who were looking after matters. He was clear that he had never been told that he would be responsible for making sure the gable wall was structurally sound on completion of the demolition works albeit that future maintenance of it might be part of his responsibility. The period between the completion of the first demolition and the collapse of the gable wall had been 6 weeks. The Koh I Noor restaurant had been closed for only two weeks during the demolition process. Thereafter the restaurant had been open but because scaffolding had been erected business at the restaurant was quieter than normal. After the first demolition and removal of the scaffolding, the restaurant returned to normal business. Mr Tahir had not been concerned for the safety of his own property or customers. Mr Tahir did not think that Mr Equi particularly wanted a second demolition but...
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K2 Restaurants Limited V. Glasgow City Council
... ... Nevertheless they did nothing further. [21] The Temporary Lord Ordinary rejected the contention that the defenders should be free of responsibility for the collapse because they had written to the pursuers and others to indicate that future maintenance of the structure would be their responsibility. There was no acceptable evidence that the pursuers or other relevant proprietors had been advised that the now exposed wall lacked stability because it was not tied-in or that the condition of the brickwork in the ... ...