West Reg Street (property) Limited Against Central Demolition Limited
| Jurisdiction | Scotland |
| Judge | Lord Doherty |
| Neutral Citation | [2018] CSOH 98 |
| Date | 12 October 2018 |
| Docket Number | CA11/18 |
| Court | Court of Session |
| Published date | 12 October 2018 |
OUTER HOUSE, COURT OF SESSION
[2018] CSOH 98
CA11/18
OPINION OF LORD DOHERTY
In the cause
WEST REG. STREET (PROPERTY) LIMITED
Pursuer
against
CENTRAL DEMOLITION LIMITED
Defender
Pursuer: Lord Davidson of Glen Clova QC; DAC Beachcroft Scotland LLP
Defender: Barne QC; Pinsent Masons LLP
12 October 2018
Introduction
[1] The pursuer carries on business as a property developer. The defender is a
demolition contractor. In 2016 they entered into a contract for the defender to demolish
three adjacent buildings (a 1960s building, a Victorian building, and a Georgian building
with a Venetian façade (“the Venetian building”)) at 28-52 West Register Street and 15-19
South St Andrew Street, Edinburgh. During the course of the demolition the 1960s building
and the Victorian building were found to contain asbestos. The parties are in dispute as to
who should bear the cost of the removal of that asbestos.
2
[2] In this action the pursuer seeks declarator that the defender is obliged to remove and
dispose of any asbestos encountered during demolition without the need for any variation
to be instructed and without any additional payment being made in respect of that removal
and disposal. The defender maintains that such asbestos removal and disposal is outwith
the scope of the work which it contracted to perform, and that a variation requires to be
instructed and paid for. The matter came before me for a proof before answer on the
commercial roll.
[3] The pursuer led evidence from two witnesses, Scott Castle and Ian Rodger. The
defender called three witnesses, Allan Bell, Colin Peat and John Hunter. Mr Castle, Mr Bell
and Mr Peat prepared signed witness statements and Mr Rodger and Mr Hunter prepared
reports (Mr Rodger’s being 6/2 of process and Mr Hunter’s 7/20 of process). The witness’s
statement or report was treated as being the substance of his evidence-in-chief (subject to
each party reserving the right to object to the admissibility of certain of the contents of each
report).
[4] Mr Castle is a quantity surveyor and project manager who is employed as a director
of the firm of Thomas & Adamson (“T & A”). In terms of the contract T & A were the
Contract Administrator, Quantity Surveyor and CDM Co-ordinator. Mr Castle was in
overall charge of the project for T & A. His evidence was mainly directed to discussions
which took place with representatives of the defender during August 2016 when proposed
amendments to the standard contract conditions were being negotiated. He also spoke to
subsequent events.
[5] Mr Peat is a director of the defender. His evidence focussed on the discussion which
took place with Mr Bell and Mr Castle about the inclusion in the contract of clauses 2.1C
and 2.1D.
3
[6] Mr Bell is the defender’s contracts manager. He gave evidence as to the background
to the contract; the discussions with Mr Castle about the inclusion of clauses 2.1C and 2.1D;
contract instructions 5 and 6; and subsequent events.
[7] Mr Rodger and Mr Hunter are both chartered surveyors with considerable
experience of construction contracts, including demolition contracts. Their reports and their
oral evidence concentrated on the Standard Method of Measurement of Building Works
(7th ed) (”SMM7”) and its bearing on the contract.
[8] In terms of a joint minute of admissions (no 20 of process) certain matters were
agreed, including a chronology of events. In addition, much of the evidence was not the
subject of any material disagreement. It is unnecessary to rehearse the various sources of
that evidence. It is sufficient simply to narrate my findings in relation to it.
[9] The most contentious evidence concerned the discussion between Mr Castle, Mr Bell
and Mr Peat about incorporation of clauses 2.1C and 2.1D. There was also some
disagreement between Mr Rodger and Mr Hunter about SMM7’s role and significance in the
contract.
The background to the contract
[10] In April 2015 T & A asked the defender to provide an informal budget price for
proposed asbestos removal works, demolition, and façade retention at 28-52 West Register
Street and 15-19 South St Andrew Street (“the combined works”). The defender was
provided with a bill of quantities for the proposed works which included a bill item C21:
“C21 TOXIC / HAZARDOUS MATERIAL REMOVAL
Site generally
Remove and dispose of all asbestos material
identified in the Asbestos Survey reports 15-17 (sic)
South St Andrews Street ref HLAD34033/010R and
To continue reading
Request your trial
2 books & journal articles
-
Variations
...Lain SA v A-G (Gibraltar) [2015] EWCa Civ 712 at [109], per Jackson LJ. 36 West Reg. Street (Property) Ltd v Central Demolition Ltd [2018] CSOh 98 at [56], per Lord Doherty. as to overpayment, see paragraph 6.365f. 37 See Cooper v Langdon (1841) 9 M&W 60 at 67, per alderson B [152 Er 27 at ......
-
Litigation
...[2013] FCA 1420 at [57]–[59], per Kenny J (appeal dismissed: [2016] FCAFC 17); West Reg. Street (Property) Ltd v Central Demolition Ltd [2018] CSOH 98 at [58], per Lord Doherty. 594 If, without good reason, an expert who has given written evidence does not appear at a hearing to give oral e......