Sane Investments Limited V. Astrazeneca Uk Limited
| Jurisdiction | Scotland |
| Judge | Lord Hodge |
| Neutral Citation | [2013] CSOH 81 |
| Court | Court of Session |
| Docket Number | CA4/12 |
| Published date | 28 May 2013 |
| Date | 03 May 2013 |
| Year | 2013 |
| OUTER HOUSE, COURT OF SESSION [2013] CSOH 81 | |
| CA4/12 | OPINION OF LORD HODGE in the cause SANE INVESTMENTS LIMITED Pursuer; against ASTRAZENECA UK LIMITED Defender: ________________ |
Pursuer: I Davie; Lindsays LLP
Defender: A Delibegović-Broome; Dundas & Wilson CS LLP
3 May 2013
[1] The pursuer ("SI") is the landlord of a property at 10 York Place, Edinburgh. The defender ("AZ") was the tenant under a twenty-five year lease granted in 1982 which expired on 31 July 2007. AZ obtained the tenant's interest by assignation in 2001. SI and AZ were not able to agree on the tenant's obligations for dilapidations on expiry of the lease. SI raised this action seeking £113,796.31 as damages for the tenant's failure to perform its repair obligations under the lease and £16,258.53 as damages in respect of professional fees relating to the repair of the property.
[2] The parties sought to adopt an economic way of resolving their dispute. They initially tried to reach agreement on contested items by means of a Scott schedule. When they were not able to agree a number of items, they agreed, with the encouragement of the court, to remit to an expert reporter certain factual questions as to whether the items which they had not agreed were "wants of repair" within the tenant's repairing obligations under the lease. The parties provided in the joint remit that the reporter was to issue his report in draft and that they could intimate objections concerning any issues of law within 14 days from receipt of the draft report. Clause 10.2 of the joint remit provided:
"In the event that a party intimates any objection or objections pursuant to clause 3.2, the Reporter must apply to the Court for direction in relation to the question of law,[or the] construction of the lease so raised in any such objection. The report shall not be finalised until the Reporter has received such directions from the Court."
[3] On 28 August 2012 I received the joint remit and appointed Mr William H. Morrison, a chartered building surveyor and director of Capita Symonds, to investigate the facts and circumstances referred to in the agreed remit and to report. Mr Morrison produced a draft report dated 9 January 2013. Both SI and AZ lodged notes of objections to his draft report and on 26 March 2013 Mr Morrison produced a response to the objections. As a result of his clarification of position in that response, SI did not insist on two of its three objections.
[4] In order to save expense, the parties agreed with Mr Morrison that they would present on his behalf the issues on which directions were sought by lodging his draft report and response and by debating their objections.
[5] Having heard counsel in a debate on 3 May 2013, I decided that Mr Morrison had not erred in law in his draft report and announced my decision at the time. I agreed to give written reasons for my decision. This opinion sets out those reasons.
SI's surviving objection
[6] SI challenges the reporter's decision to refuse its claim for £4,625. In the schedule to his report he noted that SI's claim for professional fees for preparing the schedule of dilapidations and an interim fee for the negotiation of the claim had been agreed but he refused the unvouched claim for £4,625. In answer to the parties' question whether that cost should properly be categorised as a want of repair he stated that the lease was silent in relation to the landlord's ability to recover costs incurred for any subsequent negotiations. In answer to the question whether the costs existed at the ish, he stated that no evidence had been provided that SI had in fact incurred the cost claimed.
[7] Ms Davie submitted that Mr Morrison acted beyond his remit in commenting on the claim for professional fees in his draft report. The remit asked the reporter to address whether the individual "wants of repair" identified in the Scott schedule that had not been agreed were properly characterised as "wants of repair", whether the works that SI undertook to rectify the items were reasonable and necessary, and whether the costs that SI claimed were reasonable. There was no direction to him to consider professional fees. In any event, she submitted that the reporter had misconstrued the lease...
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Bam Buchanan Limited V. Arcadia Group Limited
...to the challenge. As I said in a case which involved another report by Mr Morrison, namely Sane Investments Ltd v AstraZeneca UK Ltd [2013] CSOH 81, at para 13, the landlord is entitled to be placed in the same position in monetary terms as it would have been if the tenant had not breached ......