Midlothian Council Against David Anderson Keith And Others
| Jurisdiction | Scotland |
| Judge | Lord Tyre |
| Neutral Citation | [2017] CSOH 87 |
| Docket Number | CA70/16 |
| Date | 21 June 2017 |
| Court | Court of Session |
| Published date | 21 June 2017 |
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 87
CA70/16
OPINION OF LORD TYRE
In the cause
MIDLOTHIAN COUNCIL
Pursuer
against
DAVID ANDERSON KEITH and others, as partners of the now dissolved partnership of
BRACEWELL STIRLING ARCHITECTS
First Defenders
and
RAEBURN DRILLING AND GEOTECHNICAL LIMITED
Second Defender
and
RPS PLANNING & DEVELOPMENT LIMITED
Third Defender
BLYTH AND BLYTH CONSULTING ENGINEERS LIMITED
Third Party
Pursuer: Howie QC, D Thomson; Shepherd and Wedderburn LLP
First Defenders: Duncan QC, P Reid; CMS Cameron McKenna LLP
Second Defender: Moynihan QC, Walker; Brodies LLP
Third Defender: Ellis QC; BLM
Third Party: Borland QC, A McKenzie; BTO Solicitors LLP
21 June 2017
Introduction
[1] In this action the pursuer (“the Council”) seeks damages from the first, second and third defenders jointly and severally for loss and expense said to have been incurred in about 2013-14 when a social housing development at Gorebridge consisting of 64 newly‑built houses became uninhabitable due to ingress of ground gas, including carbon dioxide, that had migrated to the surface from disused coal mine workings. The defenders and third party are all consultants who were engaged by the Council to provide advisory and other services in relation to the housing development project. Allegations of fault made on an esto basis by the first defenders against the third party have not been adopted by the Council. The action came before me for debate of the relevancy of the Council’s case against each of the defenders. It will be necessary to address individually the arguments presented by the first defenders and third party, by the second defender, and by the third defender respectively.
The Council’s averments
[2] In about 2004, the Council began to undertake a new social housing programme involving the development and redevelopment of a number of sites within its housing area, including the one at Gorebridge with which this action is concerned and which was identified as “Site 32”. Among the consultants and contractors appointed by the Council (in approximate chronological order of appointment) were the following:
- Third party (“Blyth & Blyth”): principal engineer;
- Third defender (“RPS”): peer reviewer, contaminated land/environmental
consultant;
- Woolgar Hunter: consulting civil and structural engineers (desktop study only);
- Second defender (“Raeburn”): consultant for ground investigation design and interpretive reporting; contractor for ground investigation;
- First defenders (“Bracewell”): architect.
The case against Bracewell
[3] The terms of Bracewell’s appointment as architect in relation to the Council’s social housing programme were contained in a Framework Agreement dated 8 and 10 November 2005 (“the Architect’s Appointment”) applicable to the whole project, and in call-off agreements referred to as “Build Specific Agreements” applicable to each development site. A Build Specific Agreement in relation to Site 32 was entered into on 30 May and 6 June 2006. In terms of Clause 3.8 of the Architect’s Appointment, Bracewell were the lead consultant and lead design consultant with overall responsibility for co‑ordinating other consultants and integrating the input of all designers, the Council, and any contractor. Put shortly, the Council’s case is that in terms of the Architect’s Appointment and the Build Specific Agreement, Bracewell assumed contractual liability for the work of others, including other consultants and contractors. The Council founds in particular on Clause 5.1 of the Architect’s Appointment, which stated:
“[Bracewell] shall as part of the Build Services carry out any Site Investigation Works and surveys as may be necessary and shall use reasonable endeavours to see that reference to such is included in the Build Specific Agreement produced by it… [Bracewell] shall be wholly responsible for the Site Investigation Works and surveys, if any, referred to in the Build Specific Agreement and that irrespective of any Sub-Consultants, Contractor(s) or others appointed (including without limit site investigation contractors and laboratories)…”
The Build Specific Agreement required Bracewell to provide the Build Services detailed in an appendix. Part 15 of the appendix, entitled “Site Specific Conditions/Matters” included “normal site investigations plus possible mine shaft capping and possibly grouting works”.
[4] On the basis of, inter alia, these contractual terms, the Council contends that Bracewell assumed full responsibility for site investigation works, whether undertaken by themselves, by their sub-contractors or by others, and whether before or after Bracewell’s own appointment. Bracewell are accordingly responsible for any negligent act or omission of any of the defenders or other consultants or contractors in relation to the need to design and install a ground gas defence system within the foundations of the houses at Site 32.
The case against Raeburn
[5] Raeburn was appointed in 2005 to provide soil investigation, monitoring and analysis in relation to inter alia Site 32. On 25 April 2006, Raeburn produced an “Interpretive Report on Ground Investigation” whose purpose was to provide information on a number of matters including soil gas issues. Raeburn noted that the generation of soil or mine gas might result in migration into buildings. It carried out measurements of concentrations of carbon dioxide and on the basis of those measurements made no recommendation of a ground gas defence system. Raeburn was subsequently engaged by the Council, through its agent, Blyth & Blyth, to produce a Supplementary Interpretive Report dated 31 July 2006, in which it reported that the risk due to the generation of carbon dioxide ground gas was assessed as low, and did not recommend use of a ground gas defence system.
[6] The Council contends that Raeburn is in breach of contract in respect of inter alia inadequate site investigation, failure to categorise the risk of ground gas migration as high, inadequate monitoring with regard to number and depth of site investigation boreholes and number of visits, failure to appreciate that boreholes could create a gas migration route and to take appropriate measures to prevent this, and failure to adhere to published guidance. Any ordinarily competent professional exercising reasonable skill and care would, it is averred, have recommended and specified the use of a ground defence system such as a gas membrane, which would have prevented the ingress of gas that occurred.
The case against RPS
[7] RPS was appointed by the Council in about 2004 to act as an environmental consultant and peer reviewer to the Council in respect of contaminated land. The Council subsequently engaged RPS’s services as an environmental consultant in respect of Site 32 and, specifically, to provide a peer review of reports by members of the design team submitted to the Council qua planning authority in support of an application for building warrant. That application was made by the Council itself in its capacity as developer, and the reports submitted in support included Raeburn’s Interpretive and Supplementary Interpretive Reports and Woolgar Hunter’s desktop study. RPS reviewed the documents submitted and provided advice, described as a Peer Review, to the Council on 20 November 2007.
[8] The Council contends that RPS’s Peer Review ought to have, but failed to, identify deficiencies in the risk assessment advice received from Raeburn, and failed to identify that a ground gas defence system ought to have been, but had not been, recommended or specified by Raeburn. Had RPS not breached their contract in this manner, a ground gas defence system would have been designed and installed.
Bracewell’s case against Blyth & Blyth
[9] The Council’s pleadings with regard to the contractual position of Blyth & Blyth are somewhat opaque; it will be recalled, however, that no case is made by the Council against Blyth & Blyth. The Council admits that Blyth & Blyth had been appointed directly by them prior to the appointment of Bracewell under the Architect’s Appointment. It appears also to be admitted that in pursuance of its direct appointment, Blyth & Blyth instructed Raeburn to provide a report on the ground conditions of Site 32. Subsequently, however, in 2006 Bracewell appointed Blyth & Blyth as sub-consultant in the capacities of civil engineer, structural engineer and building services engineer in respect of Site 32. According to the Council’s averments, Blyth & Blyth assumed responsibility for a variety of geo-environmental engineering site investigation services which included arranging for the carrying out of geotechnical and other investigations and the interpretation of the results, and thus the assessment of the risk of the presence of ground gas within Site 32. The Council further assert that the agreement between Bracewell and Blyth & Blyth “confirmed the role and responsibilities under which Blyth & Blyth had been proceeding since at least November 2005”.
[10] Bracewell deny that they have any contractual responsibility for site investigation or other works undertaken by other parties, including Blyth & Blyth. In particular, they assert that they have no liability for works done by Blyth & Blyth which were directly instructed by the Council or which were instructed by Blyth & Blyth in its capacity as the Council’s agent. They further contend that esto the combined effect of the Architect’s Appointment and the Build Specific Agreement is to render them legally responsible for acts or omissions of Woolgar Hunter, Raeburn or RPS, by the same contractual framework Blyth & Blyth is legally responsible to Bracewell for such acts and omissions, and accordingly that they are entitled to be relieved by Blyth & Blyth of any liability.
Argument for Bracewell
[11] On behalf of Bracewell it was submitted that the case against them was irrelevant and should be dismissed. The...
To continue reading
Request your trial
-
(first) Mayfly Containers Limited (in Liq) And (second) Clare Boardman And Matthew James Cowlishaw As Joint Liquidators Thereof
...paragraphs 12, 14, 19-21 and 23, and Lord Hope of Craighead at paragraphs 29 and 34; Midlothian Council v Bracewell Stirling Architects [2017] CSOH 87, per Lord Tyre at paragraph 34). Mr Connal accepted that in Transfield there had been a market practice in play, and that no such considerat......