Pelagic Freezing Limited V. Lovie Construction
| Jurisdiction | Scotland |
| Judge | Lord Menzies |
| Neutral Citation | [2010] CSOH 145 |
| Docket Number | CA177/09 |
| Date | 28 October 2010 |
| Published date | 28 October 2010 |
| Court | Court of Session |
| OUTER HOUSE, COURT OF SESSION [2010] CSOH 145 | |
| CA177/09 | OPINION OF LORD MENZIES in the cause PELAGIC FREEZING (SCOTLAND) LIMITED Pursuers; against (FIRST) LOVIE CONSTRUCTION LIMITED and (SECOND) GRONTMIJ GROUP LIMITED Defenders: ___________ |
Pursuers: S. Smith; MacRoberts LLP
First Defenders: Duncan; A & W M Urquhart
Second Defenders: Dunlop; Dundas & Wilson C.S.
28 October 2010
Introduction
[1] In about 2001 the pursuers entered into a contract with the first defenders in terms of which the first defenders agreed to carry out and complete the conversion and extension of an existing warehouse in Peterhead into a fish processing complex with ancillary offices and amenities. The first defenders' contractual responsibilities are averred to have included the completion of the design of the cladding system of the new building. Also in about 2001 the second defenders (who were known as Carl Bro Group Limited at that time) were appointed to provide services in respect of the design, procurement, project management and planning supervision of the contract works. The second defenders agreed to provide the services of architect, quantity surveyor and planning supervisor under the building contract. The details of the parties' contractual arrangements are not relevant for the purposes of this Opinion.
[2] Partial demolition of the building previously on the site began in 2001, and the pursuers began processing fish in the new building on about 10 July 2002. A certificate of practical completion was issued on 8 October 2002, which was backdated to 2 September 2002. Since July 2002 the pursuers have continued to operate their fish processing business from the premises.
[3] There have been problems with water ingress through the roof of the premises. The chronology and causation of these problems were in large part the matters in dispute before me, and I turn to them more fully below. On 3 February 2009 the pursuers raised the present action against both the first and second defenders, seeking damages from them as a result of their alleged breach of contract and fault and negligence. Each of the defenders aver that any right of action against them has been extinguished by the short negative prescription. In reply, the pursuers deny that the defenders' obligation to make reparation has been extinguished by prescription. Furthermore, they rely on the provisions of Sections 11(3) and 6(4) of the Prescription and Limitation (Scotland) Act 1973 as amended.
[4] Parties were allowed a preliminary proof on the question of prescription. At this proof, the evidence of two witnesses was led for the pursuers; no evidence was led for either of the defenders. Thereafter each of the parties helpfully lodged very full written outline submissions (numbers 35, 36 and 37 of process). I do not seek to repeat these written submissions in the course of this Opinion, but I have taken account of everything submitted, whether in writing or orally, on behalf of the parties. Parties also lodged a joint minute of admissions (number 32 of process).
The evidence
[5] Mr David Robert Fasken was aged 57 and had been employed as general manager of the pursuers since 1 November 2001. He became a director of the pursuers on 19 November 2008. He was responsible for everything to do with the day to day running of the company, from production matters, employing staff, overseeing accounting and dealing with customers. He reported directly to the board of the company. He was employed with these responsibilities during and after the construction phase of the premises. Partial demolition of the previous building began in mid 2001, but the concrete floor, steel work and steel purlins were used for the construction of the new premises. The pursuers' aim was to begin operating their fish processing business in time for the Scottish herring season, which began at about the end of June or early July 2002. They began their operations on 10 July 2002, and the date of practical completion of the works was 2 September 2002. Mr Fasken was aware of one or two problems with leaks in the roof before then, but these did not concern him unduly because he was assured that these were part of the normal construction of the building. He relied on the technical expertise of the second defenders to oversee the project, and the first defenders to carry it out. He had so many other manners on his mind in setting up the business that he did not involve himself to any great extent with the construction process. Although there was correspondence between the second defenders and the first defenders and their roofing sub-contactors in the period between January and June 2002 in which there was discussion about leaks in the roof of the premises, much of the correspondence and minutes of meetings (eg. numbers 2, 3, 5, 6 and 12 of the joint bundle) was not copied to Mr Fasken and he was not aware of it. There were many other items in which roofing problems were discussed and which were copied to him, but which did not cause him any concern because he regarded them as amounting to no more than the normal defects which were to be expected in a building project of this nature, and which he relied on the second defenders (in conjunction with the first defenders) to deal with and resolve. For example, at a site meeting on 16 April 2002 at which the pursuers were represented, there was discussion about sheeting faults which had caused recent roof leaks. Mr Fasken understood this to relate to a batch of about 15 roof sheets (out of a total of about 600) which were not thick enough and not to specification. He left this to the second defenders to deal with, and understood that they were doing so. He was given to believe that the manufacturers of the sheeting, Rigidal Industries Limited ("Rigidal") had provided a report on this problem which had resolved the issue, although he did not see this report. It was always of great importance to the pursuers that they would receive a 25 year warranty from Rigidal relating to the roof sheeting materials. At a meeting on 28 May 2002 at which Mr Fasken was in attendance the second defenders indicated that they were satisfied with Rigidal's report and warranty.
[6] Although there were other roof leaks discussed in the correspondence (for example in the fax from the second defenders to the first defenders dated 7 June 2002) Mr Fasken had no recollection of leaks in the roof void at that time, and in any event it was still during the construction phase and before practical completion.
[7] However, after practical completion he was aware of roof leaks. In the snagging list as at 31 October 2002 items 29 and 30 referred to more leaks having become apparent in the recent two weeks and that there was a roof leak in the plant room. Mr Fasken was aware of these, but they were minor problems, principally in the office area where there were small trickles of water during heavy rain. The leak in the plant room was very minor and localised around the sealant of a roof fan.
[8] Mr Fasken was shown number 19 in the joint bundle, a fax from Mr Johnstone of the second defenders to Mr Lovie of the first defenders in which Mr Johnstone queried whether the correct numbers of fixings had been used and at the correct spacing for Rigidal's specification. Mr Fasken observed that this became a regular theme from this point on, and the pursuers were constantly told that the problem with the roof was the fixings. This, and the problem with the ridge capping of the roof identified in the snagging list updated at 27 November 2002 which was copied to him was within the defects liability period and he assumed that it was being dealt with by the second defenders. His understanding was that all outstanding problems regarding leaks in the roof had finally been dealt with by about early 2003, or mid 2003 at the latest. When he suggested that roof leaks should be discussed at the meeting on 11 February 2003, he was concerned only with leaks in the office area which had caused staining, and he wished the first defenders to replace ceiling panels and repaint at no cost to the pursuers; he did not remember any leaks elsewhere in the premises at that time. In particular he did not see the fax from Mr Johnstone to Mr Lovie of the following day (number 32 in the joint bundle) in which it is stated that "our client and ourselves have no confidence in the integrity of the roofs and cannot accept the incidence of water ingress". Mr Fasken did not remember questioning the integrity of the roof. Although in his fax dated 27 February 2003 to Mr Lovie Mr Johnstone again raised the outstanding issues with the roof sheeting which he considered to be a defect, this was not raised with Mr Fasken. In the minutes of the meeting of 19 March 2003 (number 36 of the joint bundle) it was reported that there had been no roof leaks since before Christmas due to the ridge cap damage, and Mr Fasken understood the roof to be free of leaks and issues regarding faulty sheeting material to be closed. He thought all the problems with the roof had been resolved; although there was an issue raised in August 2003 regarding roof leaks adjacent to two vents in the lower level roof over the plant room, these were very minor and localised and did not cause him concern. At the meeting on 8 October 2003 which Mr Fasken attended, both the first and second defenders confirmed that (apart from the very minor plant room leaks) all other issues relating to roof sheeting and roof leaks were resolved.
[9] On the night of 31 December 2003/1 January 2004 there was a bad storm with very high winds in Peterhead. When Mr Fasken and other employees of the pursuers returned to work after the festive period on 5 January 2004 they found that 3-5 roof sheets towards the western corner of the premises had been pulled off by the wind, allowing water ingress in that area. The pursuers notified both defenders and also their...
To continue reading
Request your trial
- Santander UK Plc v Allied Surveyors Scotland Ltd
-
Anne Meldrum Allison Maclehose V. Patrick Collinge Gravat Wilson+charles William Pagan
...and Limitation (Scotland) Act 1973.) It was submitted by reference to the case of Pelagic Freezing Ltd v Lovie Construction Ltd [2010] CSOH 145 that the issue of prescription having been raised, it was for the pursuers to make relevant averments which, if proved, showed that the action had ......
-
David T Morrison & Co Limited Trading As Gael Home Interiors V. Icl Plastics Limited+icl Tech Limited+stockline Plastics Limited
...and finality were achieved by the twenty year prescription. The case of Pelagic Freezing (Scotland) Limited v Lovie Construction Limited [2010] CSOH 145, referred to in paragraph [23], did not materially affect the debate. The proposition in paragraph [34] was criticised. The question wheth......
-
P H Mackie, A Cooper, J Deegan, C N Ing, A Lupton, Paul J Arrandale And F A Whiteley, As Trustees Of The Rex Procter & Partners Retirement Benefits Scheme Against (first) Eric Edwards And (second) Scottish Widows Plc
...in the circumstances and had the consequences for which the pursuers contended (Pelagic Freezing Limited v Lovie Construction Limited [2010] CSOH 145, per Lord Menzies at paras. 86-89). [199] It was common ground that there was concurrence of injuria and damnum at the date of the switch in ......