Richard Anderson V. Express Investment Company Ltd &c
| Jurisdiction | Scotland |
| Judge | Lord Eassie |
| Date | 04 September 2002 |
| Docket Number | A1794/01 |
| Court | Court of Session |
| Published date | 04 September 2002 |
| OUTER HOUSE, COURT OF SESSION | |
| A1794/01
| OPINION OF LORD EASSIE in the cause RICHARD ANDERSON Pursuer; against EXPRESS INVESTMENTS COMPANY LIMITED AND ANOTHER Defenders: ________________ |
Pursuer: Party; Haig Scott & Co, W.S.
First Defenders: Dewar, Q.C.; Drummond Miller, W.S.
Second Defenders: Bell, Q.C.; Richard Fisher, Solicitor, City of Edinburgh Council
4 September 2002
[1]The pursuer is the owner of the second floor flat in a tenement at No.2 Nicolson Square, Edinburgh. The subjacent first floor and ground floor flats are - or at least were at all relevant times - owned by the first defenders, whose business consists in owning and letting out properties. Above the pursuer's flat is a further flat, being the top flat in this four storey building.
[2]On 8 August 1988 the City of Edinburgh District Council, the statutory predecessors of the present second defenders, (to whom I shall refer hereinafter as including the former City of Edinburgh District Council) served upon the proprietors of the tenement a Statutory Notice in terms of section 87(1) of the Civic Government (Scotland) Act 1982 - "the 1982 Act". The Statutory Notice, which was numbered 04479, required the proprietors to eradicate areas of wet and dry rot which had become manifest within the building. An appeal was taken against the requirements of the Statutory Notice by the pursuer under section 106 of the 1982 Act but that appeal was withdrawn by him on 17 November 1988. The proprietors did not of their own volition instruct works to deal with the wet and dry rot present in the building. Eventually, in exercise of their powers under section 99 of the 1982 Act, the second defenders instructed the works and employed for that purpose as their contractors a firm known as Ian McDonald Preservation Limited. The second defenders thereafter submitted to the pursuer a bill, or account, to which they ascribed the number 71138641 seeking payment from the pursuer of his proportionate share of the costs incurred by the second defenders in carrying out the works so instructed by them. The pursuer did not make payment. Nor did he exercise his right of appeal to the sheriff under section 106 of the 1982 Act to challenge either the amount claimed by the second defenders or his liability. In due course the second defenders raised an action in the sheriff court for payment of the account number 71138641 ("the rot account") which the present pursuer defended pleading among others that the pursuer "having acted in bad faith and in an ultra vires manner the Statutory Notice 04479 falls to be reduced ope exceptionis". The sheriff repelled the current pursuer's defences to that action and the current pursuer's appeal against that decision was refused by the Sheriff Principal on 18 May 1995. For completeness it may be noted that in the sheriff court proceedings the current pursuer, Mr Anderson, presented a counterclaim for damages against the local authority, the dismissal of which by the sheriff was also upheld by the Sheriff Principal.
[3]In addition to the Statutory Notice relating to the wet and dry rot certain other statutory notices were served upon the proprietors of the tenement. Those with which the present action is also concerned are as follows:
(a)Statutory Notice No. 1974
This was issued on 26 November 1990. The work which it required to be carried out was as follows -
"repair slating of roof, pick out and re-point defective skews and raggles. Renew defective and missing zinc work forming watergates and ridging. Renew missing wooden ridge roll. Clean out rhones and roof pipes, repair or renew as required. Repair it and re-point as required front and rear elevation. Repair or renew defective mullions and sills. Cut back loose and defective plaster work in common stair and re-plaster same."
(b)Statutory Notice No. 1976
This was issued also on 26 November 1990. The work which it required to be carried out was described in these terms:
"Demolish to safe level and rebuild to same dimensions mutual 8 vent chimney stack. Reform coping to same, renew chimney cans. Repair, pick and re-point remainder of open gable. Renew coping stones to same. Clean out front mutual roof pipe and repair or renew as required."
(c)Statutory Notice No. 3320
This bears to have been issued on 10 November 1992 and its requirements were as follows:
"Renew section of main truss and intermediate ceiling ties damaged by fire. Reinstate low bearing petition destroyed by fire within in Flat 2A."
As respects each of the Statutory Notices the proprietors did not execute the repairs required by the Notices. It appears that the local authority therefore stepped in and, having instructed contractors to carry out the works, thereafter sought from the pursuer his proportionate share and rendered to him these accounts or bills.
(a)Account Number 71206021, dated 25 January 1993, respecting Statutory Notice 1974;
(b)Account Number 71206071, dated 25 January 1993, respecting Statutory Notice 1976; and
(c)Account Number 71209531, dated 8 April 1994, respecting Statutory Notice 3320.
The pursuer disputes having received service of Statutory Notice number 3320. He did not challenge either Statutory Notice 1974 or Statutory Notice 1976 by an appeal to the sheriff under section 106 of the 1982 Act. Nor did he take any such appeal respecting any of the three accounts issued in respect of the Statutory Notices, notwithstanding the contention now advanced that Statutory Notice No.3320 was not served upon him.
[4]In the present action, which came before me for debate on the Procedure Roll, the pursuer seeks in the first conclusion of the summons a declarator that -
"the first and second named defenders fraudulently and illegally combined to induce and did fraudulently and illegally induce the second named defenders to issue to the pursuer pretended account number 71138641; Statutory Notice 1974; Statutory Notice 1976; Account Number 71206021; Statutory Notice 3320; and Account Number 71209531."
A second conclusion seeks declarator that those accounts and Statutory Notices are "fraudulent, illegal, invalid and void" and a third conclusion seeks production and reduction of those accounts and Statutory Notices. It may be observed that Statutory Notice No. 4479, relating to the rot eradication works, is not included in those Statutory Notices whose validity is impugned. A fourth conclusion seeks production and reduction of the sheriff court decrees whereby the pursuer was ordained to make payment of the rot account. A fifth conclusion seeks payment by the first defenders alone of a sum of £100,000.
[5]Before endeavouring to identify in his pleadings the basis upon which the pursuer now seeks to challenge the validity of the Statutory Notices and accounts in question, I think it convenient to note what is not claimed by the pursuer. First, as respects the rot account, it may be reiterated that it is not sought by the pursuer to question the validity of Statutory Notice 4479 which proceeded the execution of the works within that account. Secondly, it is not averred that the rectification or repair works to which the Notices referred were not in fact carried out by contractors instructed by the second defenders; and thirdly, it is not contended that the sums which the second defenders contracted to pay to the contractors carrying out those repair works were excessive. Had any of those matters been in issue they could and should have been the subject of challenge in an appeal under section 106 of the 1982 Act. Similarly, any question relating to service of Statutory Notice 3320 could similarly have been raised in an appeal respecting the account which followed it.
[6]The plea-in-law for the pursuer which purports to focus the ground of challenge is in these terms:
"The Statutory Notices and Accounts and Decree following thereon as condescended upon having been perpetrated by the conspiracy, fraud, bad faith and malice of the first and second named defenders or those for whom they are responsible as condescended upon, Decree of Declarator and Reduction should be pronounced as concluded for."
[7]The apparent background to that proposition which emerges from the pleadings consists in the essentially undisputed fact that on 8 October 1988 a fire occurred in the tenement, the seat of the fire apparently being in the cavity between the floor of the pursuer's second floor flat and the ceiling of the subjacent flat owned by the first defenders. The fire damaged, among others, the load bearing beams in that cavity. Each of the proprietors in the tenement had an insurance policy against the risk of fire with the same insurance company, Commercial Union Assurance Company Limited. Each policy was apparently effected through the agency of the same firm of solicitors who, as it happened, acted for the first defenders and had acted for both the pursuer and the uppermost proprietor in their acquisitions of their respective parts of the tenement. In order to repair the fire damage a common scheme was arranged but, in the event, it did not proceed. It is averred by the pursuer that in light of the tender price for the common scheme the insurers made offers to him and to the topmost proprietor to settle on a particular basis, which the pursuer, at least, rejected. Litigation subsequently ensued between the pursuer and his insurers. For their part the first defenders independently reached a settlement with the insurers. The...
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