Wph Developments Limited V Young & Gault Llp (in Liquidation)
| Jurisdiction | Scotland |
| Judge | Sheriff S Reid |
| Neutral Citation | [2020] SC GLA 27 |
| Court | Sheriff Court |
| Docket Number | CA30/19 |
| Date | 08 April 2020 |
| Published date | 10 June 2020 |
SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW
[2020] SC GLA 27
CA30/19
JUDGMENT OF SHERIFF S. REID, ESQ
in the cause
WPH DEVELOPMENTS LIMITED
Pursuer
against
YOUNG & GAULT LLP (IN LIQUIDATION)
Defender
Act: Mr D Johnston QC; instructed by Mitchells Robertson, Glasgow
Alt: Mr S. Manson, Advocate; instructed by DWF, Glasgow
Glasgow, 8 April 2020
The sheriff, having resumed consideration of the cause:
1. Repels, in part, the defender’s pleas-in-law numbers 2 & 3 so far as directed at the
relevancy of the pursuer’s averments anent prescription; quoad ultra Reserves the defender’s
said preliminary pleas;
2. Sustains, in part, the pursuer’s plea-in-law number 5 so far as directed at the
relevancy of the defender’s averments anent prescription whereby, Excludes from probation
the defender’s averments in Answer 3 from (and including) the words “more particularly…”
(on page 5, line 23 of the Record number 16 of process) to the end of the said Answer; quoad
ultra Reserves the pursuer’s said preliminary plea; thereafter,
3. Allows parties a proof before answer of their respective remaining averments,
reserving, so far as extant, the parties’ preliminary pleas (namely, the defender’s
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pleas-in-law numbers 2 & 3 and the pursuer’s pleas-in-law numbers 4 & 5), on dates to be
hereafter assigned;
4. meantime, Reserves the issue of the expenses of the diet of debate and preparation
therefor.
NOTE:
Summary
[1] A patient suffers an internal injury at the hands of a negligent surgeon in the course
of a botched operation. The injury is unknown and unknowable. So the patient pays the
surgeon’s fee. Five years elapse. The patient falls ill as a result of the injury. Has the
surgeon’s obligation to make reparation to the injured man prescribed?
[2] In reliance upon a report from a negligent structural engineer, a man engages
contractors to build a house, but on inadequate foundations. The man is oblivious to the
fatal deficiency nor could it reasonably have been discovered by him. So the building
contractors are paid in full. Five years elapse. The house is condemned for demolition. Has
his damages claim against the structural engineer been extinguished by prescription?
[3] A solicitor gives negligent advice to a client. In reliance on the advice, the client
settles, at an excessive sum, a claim made against it by a third party. The client is unaware
that any loss has occurred and could not reasonably have become so aware. Five years
elapse. The client discovers the loss. Has the client’s claim against the negligent solicitor
prescribed?
[4] Each of these hypothetical scenarios raises a vexed question in the context of the
short negative prescription, namely whether a creditor’s mere awareness of expenditure
incurred by it (which only in hindsight is known to have been wasted), in reliance upon
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negligent advice, precludes the operation of section 11(3) of the Prescription & Limitation
(Scotland) Act 1973 (“the 1973 Act”). The problem is particularly acute the context of
professional negligence claims.
[5] The present case involves a similar dilemma.
[6] An architect draws up plans for a client who is a property developer. The plans
erroneously depict the outer boundary of the developer’s site. In reliance on the erroneous
plans, the developer incurs expenditure to contractors in building a housing estate on the
site, of which the outer boundary wall encroaches onto neighbouring land. The
encroachment is unknown and unknowable. Time passes; the developer is alerted to the
encroachment; and it is compelled to demolish and relocate the offending wall. But five
years have elapsed since the developer first spent money building the wall. Has the
negligent architect’s obligation to make reparation to the client prescribed?
[7] Relying upon Midlothian Council v Bracewell Stirling Architects & Others [2019]
CSOH 29 and Gordon’s Trustees v Campbell Riddell Breeze Paterson LLP 2017 SLT 1287, the
defending architect argues that any obligation to make reparation has prescribed.
[8] Two propositions are advanced for the architect. First, for the purposes of
section 11(1) of the 1973 Act, viewed with the benefit of hindsight, damnum occurred, as a
matter of objective fact, as soon as the developer, in reliance upon the erroneous plans,
incurred expenditure to contractors building upon land it did not own, because the expense
in doing so was thereby wasted. Second, since the developer was fully aware that it was
incurring expense (albeit only in hindsight known to have been wasted), the developer
cannot rely on section 11(3) to postpone the date of commencement of the prescriptive
period.
[9] In my judgment, the first proposition is correct, but the second proposition is wrong.
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