Morgan Sindall Construction And Infrastructure Limited Against Westcrowns Contracting Services Limited
| Jurisdiction | Scotland |
| Judge | Lord Clark |
| Neutral Citation | [2017] CSOH 145 |
| Date | 30 November 2017 |
| Docket Number | CA52/17 |
| Court | Court of Session |
| Published date | 30 November 2017 |
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 145
CA52/17
OPINION OF LORD CLARK
In the cause
MORGAN SINDALL CONSTRUCTION AND INFRASTRUCTURE LIMITED
Pursuer
against
WESTCROWNS CONTRACTING SERVICES LIMITED
Defender
Pursuer: Currie QC; Pinsent Masons LLP
Defender: Higgins QC; DAC Beachcroft Scotland LLP (for Levy & McRae, Glasgow)
30 November 2017
Introduction
[1] In this action, the pursuer seeks enforcement of the decision of an adjudicator, dated
18 May 2017, in terms of which the adjudicator ordered the defender to pay to the pursuer
the sum of £430,654.44, plus VAT.
[2] The pursuer was engaged as contractor by North Lanarkshire Council for the
construction of a new building, Chryston High School and Cultural Centre. Work on the
construction of the building commenced in 2010. By a sub-contract, entered into on 26 and
31 October 2011, the pursuer engaged the defender (trading as Harndec Flooring Company),
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to carry out works involving the installation of soft flooring to classrooms, corridors and
ancillary spaces within the building. The defender carried out the sub-contract works during
the period from February 2012 to July 2012.
[3] The soft flooring was principally in the form of vinyl floorcovering, although in some
areas carpet tiles were used. The floor had a concrete slab as its base, on which was placed a
layer of rigid insulating material and a damp proof cover. On top of this, an anhydrite
screed was laid. A primer was applied on top of the screed. Next, a latex levelling
compound was applied. Finally, the floorcovering was laid. The anhydrite screed was
composed of calcium sulphate and was poured over the existing surface, to which had been
attached underfloor heating pipes. The screed was then left to set. The type of primer was
specified in the sub-contract. The primer was to be applied to the anhydrite screed, when it
was sufficiently dry, before the latex levelling compound was laid, in order to promote
adhesion of the compound to the screed.
[4] After installation, areas of the vinyl floorcovering began to exhibit what the parties
described as “bubbling and blistering”. By email dated 12 July 2013, the pursuer informed
the defender of a number of locations at which bubbling and blistering were present, these
being set out in a Schedule of Defects dated 7 July 2013. Further locations were identified in
later correspondence. In that correspondence, the pursuer came to contend, based on expert
advice, that the problem was caused by three failures on the part of the defender: (i) that the
defender had used an incorrect primer, (ii) that in any event the primer had been
inadequately applied, and (iii) that the defender had failed properly to test for the presence
of moisture in the anhydrite screed prior to laying the flooring.
[5] The parties disagreed about the cause of the problem, resulting in the service of a
Notice of Adjudication by the pursuer on 6 April 2017. The pursuer sought payment from
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the defender of the cost of having another firm carry out the work of replacing the whole of
the flooring. The adjudicator found in favour of the pursuer. The defender has not made
payment.
[6] In brief, the reasons given by the adjudicator for reaching his decision were as
follows. The primer used by the defender was clearly not recommended by the
manufacturer of the primer as suitable for an anhydrite screed and was substituted by the
defender for the specified primer without approval or instruction by the pursuer. Liability
for the selection of this incorrect primer lay with the defender. In relation to workmanship,
on the basis that the experts agreed that little or no primer was evident, the primer used was
insufficiently applied to the surface of the screed. Liability for this sub-standard
workmanship also rested with the defender. So far as the presence of moisture in the screed
during construction was concerned, the adjudicator noted the defender’s argument that
construction moisture was always present in the sub-floor. As to the reasons for the
post-construction presence of moisture, the adjudicator referred to the various contentions
put forward by the defender’s expert and did not find any of these to be well-founded. He
referred to the contractual specification, including that the defender had to ensure, before
laying the flooring, that the surface was dry and had to test for moisture and retain test
results. He noted the absence of test results. He decided that the extent of the testing carried
out by the defender was inadequate and that the results provided by the defender were not
an accurate depiction of the sub-floor conditions at the time of testing. He went on to
consider other possible causes of the bubbling and blistering put forward by the defender
and did not find these contentions to be well-founded. In terms of clause 11.2(5) of the
sub-contract “a part of the subcontract works which is not in accordance with the
Subcontract Works Information” constitutes a “defect”. The adjudicator concluded that the
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