Degremont Societe Anonyme+amec Capital Projects Limited V. Caledonian Environmental Services Plc
| Jurisdiction | Scotland |
| Judge | Lord Brodie |
| Neutral Citation | [2007] CSOH 203 |
| Docket Number | A157/07 |
| Date | 19 December 2007 |
| Published date | 19 December 2007 |
| Court | Court of Session |
| OUTER HOUSE, COURT OF SESSION [2007] CSOH | |
| A157/07 | OPINION OF LORD BRODIE in the cause DEGRÉMONT SOCIETE ANONYME and AMEC CAPITAL PROJECTS LIMITED Pursuers; against CALEDONIAN ENVIRONMENTAL SERVICES PLC Defender: ________________ |
Pursuers: Sean Smith, Advocate; MacRoberts
Defender: Drummond, Solicitor Advocate; Shepherd & Wedderburn, W.S.
19 December 2007
[1] The pursuers and the defender are parties to a contract for the alteration of existing waste water treatment facilities and the design and construction of new waste water treatment facilities in Fife ("the Contract"). The Contract is averred to be "not without its complexities". There is perhaps a risk of over-simplification but, in respect of the Contract, I would understand it to be at least broadly correct to describe the pursuers as the contractors and the defender as the employer.
[2] All did not go well with the Contract, as is more particularly averred in the Open Record as adjusted which contains the pleadings in the action and the counterclaim. This now extends to 139 pages. The pursuers conclude: (1) for declarator of entitlement to extension of time, (2) for payment of £27 million, (3) for payment of £6,634,101.90 and (4) payment of £8,204. The defender counterclaims for the following sums: (1) £2,039,000, (2) £4,985,702.40, (3) £800,000, (4) £850,000, (5) £3,939,142.20 and (6) £13,552,569.28.
[3] As is perhaps not very surprising, the adjustment period has been continued on two occasions. The Record is due to close on 12 December 2007 but neither party considers its pleadings to be complete and a further extension of the adjustment period (which failing amendment) will be necessary.
[4] The action counterclaim came before me on the motions for commission and diligence in terms of the parties' respective specifications of documents. There was substantial agreement between the parties. They agreed that commission and diligence should be granted in respect of the defender's specification, as amended. It is agreed that commission and diligence should be granted in terms of calls 1 to 5 of the pursuers' specification. Calls 6 to 9 in the pursuers' specification, however, are controversial. These calls were in the following terms:
"6. All correspondence, records, notes, memoranda and other documents kept by or on behalf of the defenders and/or MBIA Assurance SA, 112, avenue Kleber, 75116 Paris (Company Number B377883293 (98 B 05130)) ('MBIA') for the period from October 2002 to June 2006 in order that extracts may be taken therefrom at the sight of the commissioner of all entries showing or tending to show the defenders' liability, and the extent of that liability, for professional fees incurred by MBIA in obtaining legal and other technical advice in relation to MBIA's position under the Agreement and the defender's position under the Contract, all as condescended upon by the defenders in Statement of Fact 13.
7. All correspondence, records, notes, memoranda and other documents kept by or on behalf of the defenders for the period from October 2002 to June 2006 in order that extracts may be taken therefrom at the sight of the commissioner of all entries showing or tending to show the additional costs in obtaining legal and technical advice, and the defenders' project management costs, all as condescended upon by the defenders in Statement of Fact 14.
8. All correspondence, records, notes, memoranda and other documents kept by or on behalf of the defenders for the period from October 2002 to June 2006 in order that extracts may be taken therefrom at the sight of the commissioner of all entries showing or tending to show the nature and extent of all claims made by CELTS in relation to the Commissioning Consumables Guarantee, and all sums paid by CES to CELTS thereunder, all as condescended upon by the defenders in Statement of Fact 15.
9. All correspondence, records, notes, memoranda and other documents kept by or on behalf of the defenders for the period from October 2002 to June 2006 in order that extracts may be taken therefrom at the sight of the commissioner of all entries showing or tending to show the additional works costs, operations costs, additional maintenance costs, and additional labour costs, all as condescended upon by the defenders in Statement of Fact 16."
[5] Mr Drummond, on behalf of the defender, began by drawing my attention to the four calls that were objected to and the pleadings to which they related. The calls are in broadly similar terms. They each seek to recover documents kept on or behalf of the defender showing or tending to show the basis upon which the sums third, fourth, fifth and sixth counterclaimed are calculated. Each call refers to a separate statement in the counterclaim and each of these...
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