W.f. Price Roofing Limited V. Balfour Beatty Construction Limited
| Jurisdiction | Scotland |
| Judge | Sheriff Principal E.F. Bowen |
| Court | Sheriff Court |
| Docket Number | (A988/05) |
| Date | 04 August 2006 |
| Published date | 07 August 2006 |
(A988/05)
JUDGMENT OF
SHERIFF PRINCIPAL EDWARD F BOWEN QCin the appeal
in the cause
W F PRICE (ROOFING) LIMITED
Pursuers and Appellants
against
BALFOUR BEATTY CONSTRUCTION LIMITED
Defenders and Respondents
Act: Macfarlane, Solicitor, Semple Fraser
Alt: McLean, Solicitor, Tods Murray
EDINBURGH, 4th AUGUST 2006
The Sheriff Principal, having resumed consideration of the cause, refuses the appeal and adheres to the Sheriff's interlocutor complained of dated 21 September 2005; finds the pursuers and appellants liable to the defenders and respondents in the expenses occasioned by the appeal and remits the account thereof, when lodged, to the Auditor of Court to tax and to report thereon.
(signed) EFB
NOTE:
1. In this action the pursuers seek a declarator that "the conditions on the site at Glen Turner Whisky, Starlaw Park, Livingston, West Lothian during the night between 7 and 8 May 2003 fell within the definition of "storm" in the specified perils clause (Clause 1.4) of contract conditions DOM/C/scot/CDP forming part of building contract DOM/A/scot/CDP". As the learned Sheriff has set out in the opening paragraph of his Note they aver that they entered into a sub-contract with the defenders to install roof cladding on a new building. On 7 May 2003 roof sheets had been lifted on to the roof steelworks. They were securely enveloped in packages of about 40 to 50 sheets. The weight of these packages varied from 1.2 to 1.5 tonnes. The pursuers had unwrapped some of the packages to fix the sheets to the roof. Before leaving the site they secured the unwrapped sheets and the still wrapped packages to the roof purlins with ropes. On the morning of 8 May they discovered that there had been severe damage to the unfixed roof sheets including packs which had not been opened.
2. The form of sub-contract between the parties provides that the sub-contractor shall be liable for the cost of restoration of sub-contract work lost or damaged and replacement or repair of site materials for the sub-contract works except where such loss is caused by inter alia a specified peril. The definition of specified peril includes "storm, tempest, flood". The present dispute between the parties arises because the pursuers contend that the damage to the roof sheets was caused by "storm". They have requested the defenders to submit a claim to their insurers. The defenders have declined to do so, maintaining that the weather conditions on the night of 7 and 8 May 2003 did not constitute a "storm".
3. The case came to debate before the Sheriff who dismissed it. In the first place he upheld arguments that the action was incompetent and irrelevant because the sub-contract clause founded on by the pursuers in the crave does not, in fact, contain a specified perils clause. That is a matter of formality. More critically from the point of view of the pursuers the Sheriff upheld an argument that their pleadings were essentially lacking in specification in relation to whether the weather conditions on the relevant night constituted a "storm" as that term falls to be understood in law. He also upheld arguments that the pursuers averments did not contain a link between the weather conditions and the damage, and that their reference to a Met Office report was also irrelevant when that report indicated that the wind strength on the Beaufort scale did not reach storm force.
4. The pursuers have effectively conceded that to a significant extent the Sheriff's conclusions were well founded. They have lodged two minutes of amendment prior to the matter coming to appeal. The first of these purports to deal with the failure to specify the correct sub contract clause in the crave of the writ. Whilst there remains some doubt as to whether the pursuers averments about the contractual provision on which they seek to rely are relevant to support the terms of the crave the issue in that respect is, in substance, no longer a live one. It may also be observed that there are now sufficient averments to provide a causal link between the weather conditions and the damage to the roofing sheets.
5. One further matter falls to be considered before proceeding to the substance of the appeal. It was pointed out by the solicitor for the defenders and respondents that the pursuers' crave merely seeks declarator that the conditions on the night in question fell within the definition of "storm" in the specified perils clause of the sub-contract, and would, if granted, "take them nowhere". Whilst tempted to the view that this is a bare declarator and as such is one which the Court might not be disposed to pronounce I am prepared to accept the position that what is sought to be declared does concern a real practical question between the parties. Upon the view that there is a material issue I am prepared to deal with it.
6. A further question arose as to whether I should deal with the appeal at all standing the fact that the pleadings are now extensively amended. In the normal course this might be a situation for a remit to the Sheriff to consider the matter of new, but it appeared to me to be in the interests of expeditious justice that I should give a view on the issue as now presented. In its essentials the issue now before the Court is not far removed from the central issue with which the Sheriff had to deal and I am doubtful of...
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