Macdonald Estates Plc For A Review Of A Decision Of Gordon Murray, Architect Dated 27 August 2009
| Jurisdiction | Scotland |
| Judge | Lord Woolman,Lady Paton,Lady Cosgrove |
| Neutral Citation | [2009] CSIH 72 |
| Court | Court of Session |
| Published date | 29 September 2009 |
| Date | 18 September 2009 |
| Year | 2009 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lady Paton Lord Woolman Lady Cosgrove | [2009] CSIH 72 OPINION OF LADY PATON in the Petition of MACDONALD ESTATES PLC Petitioners; For a review of a decision of Gordon Murray, architect dated 27th August 2009 _______ |
Respondent: Clark QC, Davies; Harper McLeod LLP
18 September 2009
[1] In view of the shortage of time, I do not propose to rehearse the background or to record the arguments presented on Thursday 17 September 2009.
[2] The petitioners seek interim orders in terms of paragraphs (b) and (c) of Statement 3 of the Petition. There is no dispute over paragraph (b). Accordingly we shall grant interim suspension in terms of paragraph (b).
[3] In relation to paragraph (c), I acknowledge that the clear and fully-reasoned opinion of the Lord Ordinary supports the petitioners' contention that they have a prima facie case. In view of the conflicting opinion known to have been provided by an experienced senior counsel who advised Mr Murray, I am not minded to explore the strength of that prima facie case. I am content simply to confirm that there is indeed a prima facie case.
[4] I turn therefore to the balance of convenience. First, it was submitted that the grant of the interim order in terms of paragraph (c) would preserve matters entire pending the outcome of the current reclaiming motion concerning Mr Murray's status and obligations. I do not agree. In my opinion, on a proper construction of the missives, the contracting parties' intention was that satisfactory planning permission (unencumbered and unqualified by disagreements, disputes, referrals to experts, arbitrations, or litigations) would be in place by 26 September 2009 as a prerequisite of the continuance of the project, otherwise parties would be free to resile. The significance of that contractual condition should not be underestimated in a commercial project of this nature, as parties to the project have agreed a precise timetable including dispute-resolution procedures. Were this court to accede to the petitioners' motion and to grant the interim order sought in terms of paragraph (c), far from preserving matters entire, the court would be innovating upon the parties' contract by putting to one side the existing fundamental dispute over planning permission, and ordering the production of a final determination from Mr Murray which would result in the purification of the suspensive condition such that neither party would be entitled to resile. In my opinion, that approach would result in a major departure from the parties' intention as evidenced by the missives.
[5] Secondly, it was contended on behalf of the petitioners that any prejudice suffered by NCP as a result of the granting of the interim order would be outweighed by the prejudice suffered by the petitioners were the interim order not granted. Inter alia, the following points were made:
[6] The project involved other parties, namely SECC and another party who acted as both funder and developer. If the interim order were granted and the final determination issued confirming that satisfactory planning permission had been granted prior to 26 September 2009 such that the suspensive condition in the Macdonald/NCP missives was purified, then those other parties would, in terms of their contracts, proceed with the project. However if the interim order were not granted, and if the suspensive condition in the Macdonald/NCP contract were not purified by 26 September 2009, the whole project would founder, as those other parties would be contractually entitled to (and would be likely to) withdraw. That would involve considerable prejudice to the petitioners.
[7] By contrast, it was contended that the grant of the interim order would result in no prejudice to NCP. NCP would simply be held bound by an agreement which they had entered into. NCP would not have to carry out any works meantime. Even if NCP carried out some work and incurred loss, they would be protected by their right to claim damages from the petitioners, who sought the interim order periculo petentis. If NCP were ultimately successful in their contention that Mr Murray was an arbiter, then matters would revert back to the stage when Mr Murray was requested to state a case for the court. Mr Murray's final determination (issued in compliance with this court's interim order) could be reduced. Few difficulties were envisaged in such a reduction, as (a) it would be procedurally competent within the judicial review process (Rule of Court 58.4(b), the Answers being amended if necessary); (b) the other contracting parties would have no locus to enter the process to oppose reduction; and (c) counsel for the petitioners ultimately gave an undertaking that if NCP were successful in their argument that Mr Murray was...
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