OUTER HOUSE, COURT OF SESSION [2006] CSOH 76
A1317/03	OPINION OF LORD EMSLIE in the cause ATWAL ENTERPRISES LTD Pursuers; against DONAL TONER, t/a DONAL TONER ASSOCIATES Defender: ­­­­­­­­­­­­­­­­­________________

Pursuers: Moynihan QC; Drummond Miller WS

Defender: Springham; Simpson & Marwick WS

12 May 2006

Introduction

[1] In the course of 1995, after intermittent preparatory activity dating back to 1990, work commenced on the construction and installation of a 5-a-side football complex in Glenrothes. The complex was to consist of a pavilion and bar attached to six all-weather artificial pitches, a facility for which there was thought to be substantial demand in the area. The main contractors engaged for this project were Europa Construction (UK) Ltd ("Europa"). The nominated specialist sub-contractors for the artificial pitches were En Tout Cas Ltd ("ETC"), a company with worldwide expertise and reputation in that field. The defender was the architect for the project following the dissolution of his former firm, the Toner Kerr Partnership, which had been involved at an earlier stage. In this action it is now accepted that the pursuers, a company incorporated in December 1993, were at all material times the client to whom the defender's professional services were rendered and on whose instructions the project was undertaken. The director of the pursuers most closely involved with the project was Mr Baljinder Atwal ("Mr Atwal"), who personally conducted all negotiations both before and after December 1993.

[2] Within a matter of weeks after the final completion of the project in early 1996, Mr Atwal reported to the defender that there were problems with water lying on the surface of pitches 1 and 2 situated nearest to the pavilion. Thereafter, as the use of the complex increased, similar surface water problems were found to affect all six pitches. In particular, instead of remaining substantially unaffected by light rain, and draining within a short time after the cessation of heavy rain, the pitches were affected by surface ponding of water which would appear on virtually any rainfall and would last for a considerable period after the rain stopped. In consequence, the pitches were regularly dangerous and unplayable in wet weather; their use diminished significantly on account of limited availability and deteriorating condition; their capital value was adversely affected; and in this action (following the liquidation of Europa and ETC in 1996 and 2000 respectively) the pursuers seek to recover damages from the defender in respect of their resultant loss and damage.

[3] At the proof which has now taken place before me over a total of 23 days in June/July 2005 and February/March 2006, the parties were in dispute on three principal issues. These were (i) the cause or causes of the surface water problems affecting the artificial pitches; (ii) the nature and extent of any recoverable losses sustained by the pursuers in that connection; and (iii) the extent (if any) to which such losses were attributable to professional negligence on the part of the defender or of those for whom he is in law responsible.

[4] According to the pursuers, the surface water problems were caused by excess fine material in the foundation and dynamic layers constituting the sub-base of the pitch construction, thereby making them relatively impervious to water and retarding normal drainage. Broadly speaking, the foundation layer was intended to comprise a relatively coarse, stable and free-draining mix of crushed stone several inches in depth. The dynamic layer was a much shallower deposition of finer material designed to cover or "blind" the uneven top surface of the foundation layer, and thus to provide a smooth and level support for the synthetic pitch "carpet" above. The pursuers' position, in summary, was that the excess fines rendered both of these sub-base layers disconform to the contract specification; that this ought to have been obvious to an ordinarily competent and careful architect both during and immediately after the construction phase, when contract monies could have been withheld and the responsible contractors could have been required to rectify the problem; that instead the defender's employee Stephen Gordon certified all work for payment and issued a certificate of practical completion, thereafter doing little to help the pursuers find a way out of their difficulties; that the pursuers are consequently faced with substantial rectification costs allied to a loss of profits over many years; that no architect of ordinary competence exercising reasonable care and skill should have been guilty of the failures now alleged against the defender; and that, having been professionally negligent, the defender should be held liable to the pursuers in damages.

[5] In sharp contrast, the defender maintained that the acknowledged surface water problems were caused by a combination of (i) the pursuers' choice of a low-cost specification for the works (in particular omitting a geotextile membrane between the sub-base layers and the clay soil beneath, and further omitting a perimeter cut-off drain to prevent water ingress from the slightly higher ground surrounding the pitches on three sides); (ii) progressive contamination of the sub-base layers by migration of water-borne clay from the subjacent and surrounding ground; (iii) disconnection and blockage of the main drainage system at various times; and to some extent (iv) the pursuers' failure to maintain the pitches. The defender further contends that both design and construction of the pitches were the responsibility of the specialist sub-contractors ETC; that his own duties as architect during the construction phase were limited, extending to little more than a brief fortnightly site inspection; that at the material time he had no reason, as architect, to suspect that the works were defective as alleged by the pursuers, any early appearance of surface water being consistent with the fact that the pitch drainage system was not connected into the main sewer until December 1995; and that in the circumstances he was not guilty of professional negligence and accordingly under no liability in damages to the pursuers. In any event, according to the defender, the intended lifespan of the pitches was no greater than 7-8 years even if properly installed and maintained, and for that reason among others the pursuers' claim was excessive.

[6] In the paragraphs which follow I propose to deal in turn with each of the principal issues in contention between the parties.

Cause or causes of the surface water problems affecting the pitches

General

[7] As regards the physical conditions which caused surface water to lie on the pitches after rain, there was a fair measure of agreement among the various experts who had, over the years, been engaged to carry out inspections and conduct investigations. As early as March 1997 Weeks Technical Services, engaged by ETC, concluded that the dynamic layer (which they called "whin dust") was of low permeability, and appeared to be acting as a sealing layer over the sub-base by filling the surface voids. On 15 January 1998, Charles Lawrence (Scotland) Ltd reported to the pursuers inter alia as follows:-

"... the basic problem with the surface is that the dynamic base has sealed and is impervious to water. ... The reason for this is that the clay content in the top regulating layer under the geotextile membrane is high and is forming a barrier to the passage of water into the Type 1 base. ... From inspection, we would also have reservations on the quality of the Type 1 material which also seems to be contaminated and resistant to the passage of water."

In February 1998, in dry conditions, the pursuers' architectural expert Gordon Gibb inspected the exposed top of the sub-base after lifting a corner of the "carpet" or artificial pitch surface. He found that this was damp, taking on the appearance of wet concrete, and furthermore that it had the consistency of fine sand with no aggregate visible. The material appeared waterlogged and did not look as if it had the characteristics of a good draining medium. In a letter to the pursuers dated 9 September 1998 (no.6/65 of process), ETC's operations director Mr Sheard drew attention to what he described as "discrepancies in the planarity" of the subjacent clay surface, and continued:-

"The depth of the sub-base also varies and is contaminated with clay and fines which decrease its porosity. The fine grade dynamic layer is also dense and is not as porous as we would prefer. ... The combined effect of the different situations described above is to produce a slow draining playing surface".

[8] Later investigation has brought out the same general conclusion. As illustrated by particle size distribution tests carried out by the pursuers' civil engineering expert Eric O'Donnell in 2000, and by the defender's pitch expert Graeme Tipp in 2005, the fundamental problem was an excessive proportion of fine materials in the dynamic layer, and to a lesser extent in the foundation layer, resulting in these layers being less porous and water-permeable than the artificial pitch surface above. In terms of volume, the samples tested by Mr Tipp comprised a majority of fine material passing the 0.6 mm. sieve. The sub-base layers were not, in short, free-draining, and the presence of water on the pitch surfaces after rain was thus inevitable.

[9] At the proof, the validity of these general conclusions was accepted by all of the technical witnesses who were led on both sides, namely Messrs Kidd (formerly of ETC and Charles Lawrence), O'Donnell and Gibb for the pursuers, and Messrs Tipp and Pirie (a consultant to the Hurd Rolland architectural partnership) for the defender. However, the parties remained severely at odds as to when and how the problem of excess fines arose. According to the pursuers, the explanation was simple and straightforward: the materials used by the specialist sub-contractors ETC in constructing the pitches were disconform to contract. In particular, the material delivered to site for use as the dynamic layer had far too low a stone content, and correspondingly far too high a percentage of fines. In these respects it did not meet the confidential internal specification for ETC's own proprietary "Dri Pla" mix to which the sub-contract referred, but more importantly it did not conform to the fundamental requirement that the constructed sub-base layers should permit free drainage of all water percolating through the artificial pitch surface. To a lesser extent, the same criticism could be levelled at the composition of the foundation layer which might erroneously have been Type I material rather than the coarser Type IX specified. Accordingly, as soon as increased rainfall was experienced in the late autumn of 1995, while construction was still in progress, surface water began to pond on the rolled and compacted dynamic layer and thereafter on the artificial sanded carpet when that was laid. Subsequently, the problem became more widespread and more acute as the pitches came into regular use, with the most noticeable ponding occurring on the heaviest-compacted central areas between goalmouths. However, the underlying cause remained the initial disconformity of the materials as laid.

[10] According to the defender, on the other hand, it was highly unlikely that renowned specialists like ETC should, without noticing, have taken delivery of dynamic layer materials which were obviously disconform to their own proprietary mix, and then proceeded to spread and compact the wrong materials across the whole area of the construction. It was equally unlikely that ETC's subcontractors should have laid a defective foundation layer. There was, moreover, no reason to think that the materials as initially laid were anything other than free-draining. As recent investigations showed, the problem was one of progressive contamination with fines subsequent to installation, the primary sources of such contamination being (i) clay-laden water running over and through the pitch construction from the elevated surrounding area after rain; and (ii) water-borne clay particles migrating upwards into the foundation and dynamic layers during periods when the main outfall drainage of the site was inoperative and the pitches became waterlogged. The pitches had been constructed in a shallow excavation through natural clay strata, and such contamination was inevitable in the absence of a geotextile membrane or a perimeter cut-off drain. Moreover, throughout the construction phase, the outfall drainage system remained unconnected to the main sewer north of the site, causing contaminated water to rise through the sub-base layers and reduce their initial drainage capacity. Significantly, in June 2005, the pitch construction became flooded following blockage of the main outfall drainage system to the north east of the site. There was thus a convincing explanation, not only for the high proportion of fines discovered in the foundation and dynamic layers, but also for the appearance of water on the surface of the pitches while they were still under construction.

[11] A notable feature of the proof was that neither party had apparently carried out any tests or investigations which might conclusively identify the source or sources of the unwanted fine materials. For their part, the pursuers led no evidence (from former ETC personnel or otherwise) to identify the quarry or quarries from which the sub-base materials were obtained, nor to prove by scientific analysis that the offending materials came from there, nor indeed to show that such fines could not have come from the surrounding or subjacent clay formation as the defender suggested. Similarly, while the defender led evidence of simple microscopic and visual analysis tending to show the identical appearance of fines separated from the foundation and dynamic layers respectively, no investigations had been carried out on his behalf to confirm that these materials were either identical to fines comprised within the surrounding or subjacent formation, or alternatively different from such fines as could have been delivered to site from any relevant quarry or quarries in 1995. In consequence, I am left to determine this first crucial issue as a matter of probability, by reference to the substantial volume of factual and opinion evidence which is now before me.

[12] On that basis, I have reached the conclusion that the pursuers' contentions are to be preferred, and that in all probability the underlying cause of the surface water problem was the over-fine composition of the materials which ETC and their subcontractors received on site and then incorporated into the pitch construction. However, resolution of this issue has not been an easy task, given the significant contradictions within the evidence and the range of considerations which might appear to favour the defender. For example, I agree with counsel for the defender that, at first sight, it seems unlikely that renowned and experienced specialists like ETC should have failed to notice when dynamic layer material of the wrong specification was delivered to site and then spread and compacted across the whole area of the pitches. David Kidd, ETC's former regional manager who gave evidence for the pursuers at the proof, apparently had no difficulty in identifying the alleged disconformity when he and a colleague (then employed by Charles Lawrence) inspected the pitches in January 1998, and further claimed to recognise the same disconformity in the video footage of site works in October 1995. In particular, with reference to the video footage of two recently-delivered mounds of what should have been ETC's proprietary Dri Pla mix, he asserted that they comprised far too little stone, and correspondingly too much fine material or "dust", as illustrated by the sharp delineation of a footprint in the surface of one of the mounds close to its base. If the supposed disconformity was so easily recognised by Mr Kidd, how could the ETC representatives on site have failed to recognise it over an extended period in 1995?

[13] There are, however, many reasons why I am unable to regard this apparent improbability as determinative, and why, in my opinion, disconformity of the sub-base materials to contract is indeed the most likely cause of the surface water problems which have blighted the development. These reasons are discussed in paragraphs [14] to [36] below.

Mr Kidd's evidence

[14] To begin with, I am satisfied that I should accept Mr Kidd's evidence to the effect that in 1995 " a fairly major problem" arose on site by reason of his former company inter alia using material other than Dri Pla for the dynamic layer of the pitch construction. He was, I consider, particularly well-qualified to say what did or did not constitute Dri Pla. He had worked for ETC for some 14 years up to 1995, leaving them very shortly after the pitch works at Glenrothes began. He was a civil engineer by training, and clearly had a great deal of experience in the construction of artificial pitches. In that context the composition, appearance and performance of the proprietary Dri Pla mix must have been very familiar to him. As a civil engineer, moreover, he could be expected to have a sound working knowledge of the drainage potential of different soils and constructional materials. In January 1998, along with another experienced civil engineer, he examined the pitch construction with some care, digging 12 trial pits and taking appropriate samples in the process. Although brief, the resulting joint report no. 6/37 of process was in clear and unequivocal terms. As regards the video footage taken in 1995, the principal significance of Mr Kidd's evidence was that in his view the appearance and behaviour of the materials shown were no different from what he observed just over two years later, and it is noteworthy that Mr O'Donnell cited roller marks on the video as tending to support his parallel conclusion that the dynamic layer was too fine and close-textured.

[15] In this context, I accept Mr Tipp's warnings that the composition of different parts of a mound of material may be expected to vary, and that (as in the case of wet sand on a beach) the presence of a clear footprint would not necessarily demonstrate a lack of permeability. I also accept the need for caution in interpreting short lengths of video footage taken by a layman. Mr Kidd, however, had the real advantage of examining and testing the sub-base layers of the pitch construction in January 1998, and I see no reason to doubt his evidence on the narrow question whether the video footage obviously differed from what he had seen before. Both in 1998 and 1995, he said, it was clear that the stone content of the dynamic layer (by which he meant whinstone chips having a particle size of 6 mm and upwards) fell very far short of the required level of 75-80%. Given the extent of his experience, Mr Kidd's evidence on this point strikes me as impressive and reliable, and I do not understand it to be suggested that what he said on oath was deliberately false. Moreover, his stated particle size for the stone content was entirely consistent with Mr O'Donnell's measurement of the depth of the dynamic layer on site at 25-35 mm.

[16] By comparison with the ETC personnel who remained on site after his own departure in about August 1995, it seems to me that Mr Kidd's training and experience rendered him less likely to make a mistake as to the essential characteristics of the dynamic layer material used on site. Much of that material was delivered and spread in the early autumn of 1995, before significant rains fell, and according to the defender's architectural expert Mr Pirie it would at that time have felt gritty and granular to anyone handling it. Significantly, that was the general impression gained by Stephen Gordon, the project architect, in early October 1995 when handling material from a different pile of what the ETC site representative, Paul Waddington, told him was Dri Pla. Moreover, Mr Tipp in the witness box repeatedly stressed that it was only after carrying out particle size distribution tests that he was able to draw conclusions as to the true nature of the problem. In my opinion, considerations such as these make it easier to imagine how ETC's site personnel could have received, spread and compacted the delivered material in relatively dry conditions without appreciating that there was something seriously wrong. So long as subsequent loads were broadly consistent with the first load delivered, it may be that no-one was alerted to a possible problem as the works progressed.

[17] Furthermore, no other witness was in a position to contradict Mr Kidd's assertion that, in a Scottish context, Dri Pla typically comprised at least 75% whinstone of a particle size of 6-10 mm, together with 20-25% of what he described as "dust". Counsel for the defender sought to interpret Mr Kidd's reference to "dust" as restricted to fine particles below 0.6 mm in size, but I do not consider that to be a fair reading of his evidence. Had Dri Pla comprised such a high level of very fine particles it would never have been free-draining, and it was perhaps for this reason that Mr Tipp, in his evidence-in-chief, queried whether Mr Kidd could actually have meant that. In any event, again echoing Mr Tipp, it seems unlikely that Dri Pla would not have been the free-draining mix which its name suggests. Much more likely, in my view, is that Mr Kidd was using the term "dust" in a looser sense, to denote all of the graded fraction of Dri Pla having a particle size smaller than 6 mm. As he explained in cross-examination, the right grading was an important feature of any dynamic layer. All in all, as Messrs Tipp and Pirie fairly accepted, Mr Kidd ought to have been in a position to judge whether the material he saw and inspected was or was not Dri Pla. In all the circumstances, I do not consider that there is any reason to doubt the evidence which Mr Kidd gave on that subject.

Pattern of ponding in 1995 and 1996

[18] Significantly, it was accepted by the experts on both sides that initial disconformity of one or both of the sub-base layers to specification was at least a possible explanation consistent with the appearance of surface water on the pitches after rain. In my opinion this explanation was, on a consideration of the whole evidence, not merely possible but probable. In particular, as it seems to me, it is the only suggested explanation which convincingly accounts for the early onset of scattered surface water ponding in October 1995. Such ponding appears on the video footage from 3 October 1995 onwards, initially on the foundation layer alone but becoming particularly marked on the exposed dynamic layer of certain pitches as at 17 and 31 October 1995. The striking feature here is that the distribution of the ponding was apparently irregular and random across different pitches, especially pitch 2, and did not at any stage give the appearance of flooding of the whole pitch construction or even of a substantial part of it. Mr O'Donnell's evidence was particularly positive in this connection. His considered view was that if (as maintained by the defender) the sole cause of the surface ponding seen at that stage was the main drainage outflow being unconnected, the pattern and appearance of such ponding would have been distinctly different. It would, he said, have involved rising water levels affecting the lowest point on the pitches, and spreading and developing from there. In this he was supported by Mr Gibb, who envisaged rising water spreading laterally like the tide coming in. Neither man was prepared to accept that any lack of connected drainage could have produced the scattered ponding which actually occurred in areas well away from the lowest point of the pitch construction.

[19] In various respects Mr O'Donnell's written report no. 6/51 of process was an unimpressive document. Despite his protestations, it was not clear whether no.6/51 or no. 7/9 of process was the final version; both were wrongly dated; there were unexplained changes of wording between the two documents, coupled with apparent contradictions regarding the depth of the dynamic layer as found and a mistake as to the specification of the foundation layer; and both contained a surprising error in suggesting that no lateral drains had been laid beneath the pitches. Be that as it may, Mr O'Donnell came across as an impressive witness in court, and I am not prepared to discount the substance of his evidence on crucial matters on the strength of apparent carelessness in the preparation of his written advice.

[20] Importantly, the pattern of ponding of which Mr Atwal complained in March 1996 was broadly the same as that which appeared on the video footage taken while construction was in progress. In December 1995, however, the outfall drainage had finally been connected into the main sewer, at which point it may reasonably be assumed that the whole drainage system was tested and confirmed to be functional. No evidence was led of any malfunction of the newly-connected drainage system in the intervening period, and it therefore seems highly unlikely that downstream drainage problems could have been the cause of the observed ponding in March 1996. If that is so, then it is just as unlikely that downstream drainage problems were responsible for the very similar ponding which appeared in and after October 1995.

Permeability

[21] From the outset, all permeability tests have confirmed the inability of the pitch construction to drain properly from the top down. The figures are remarkable, being several orders of magnitude lower than they ought to be, and in my view this again tends to show that there was something intrinsically wrong with the pitch construction itself, rather than some supervening problem with downstream drainage. Furthermore, external contamination could hardly explain such low permeability in the early years of the development. The earliest calculation of permeability appears in the brief report by Weeks Technical Services in March 1997, and subsequent test results were broadly consistent with that.

ETC's conduct
[22] It is also significant that when the pursuers' complaints persisted, ETC ultimately responded by instructing the Weeks report in March 1997. At no stage did they seek to raise downstream drainage problems or external contamination as a possible explanation, and indeed the terminology of Mr Sheard's letter no.6/65 of process was inconsistent with any such suggestion. Following the Weeks report ETC went on to carry out various remedial works at their own expense. By that stage, they were under no contractual obligation to do so, all work having been paid for and the defects liability period having expired. It seems to me that ETC's conduct in this regard constitutes powerful evidence that they recognised and accepted that the sub‑base layers, and in particular the supposed "Dri Pla", did not conform to specification. Admittedly, the limited works which they undertook involved the laying of more stone and lateral drains under pitch 1, and correspondingly did not involve the wholesale removal and replacement of either of the sub-base layers, but it has to be remembered that this was only an initial attempt in the hope that conditions would improve. For a while, it seems, conditions on that pitch did improve, but I do not think that this weakens the pursuers' position. For one thing, the laying of extra drains and clean stone in and below the foundation layer could hardly have failed to improve matters to some extent, and in addition the skimming and temporary de-compaction of the dynamic layer (with the possible addition of some less fine material) must also have had some beneficial effect. The fact that, over time, the old problem with pitch 1 began to reappear tends, in my opinion, to support the view that the primary cause of the problem was the composition of the sub-base layers. Mr Atwal's initial complaint concerned the pitches which were most often used when the complex opened for business, with ponding being concentrated in the most heavily-compacted areas along the centre section of the pitches between the goalmouths. Similar problems spread to other pitches as they came into heavier use, and it therefore seems likely that compaction was a factor which further reduced the drainage capacity of the sub-base layers. On that analysis, gradual re-compaction following ETC's remedial works would appear to provide a plausible explanation for the reappearance of the problem on pitch 1.

Interim conclusion

[23] On the evidence to which I have referred so far, I am unimpressed with the defender's contention that the ponding of water seen on certain pitches in the course of construction in 1995 should be attributed to the fact that the downstream drainage had not yet been connected into the main sewer north of the site. Had this been the sole issue for determination, I would have had no difficulty in upholding the pursuers' contention that the probable cause of the appearance of surface water at that stage was disconformity of the sub-base layers to the contract specification.

External contamination theory - general

[24] However, the defender has led powerful evidence, from Messrs Tipp and Pirie in particular, tending to indicate that the true cause of the long-term problems affecting the pitches has been progressive contamination of the sub-base layers with clay from the subjacent formation and surrounding area. Mr Tipp was the leading proponent of this theory. According to him, the problem started at a very early stage, and indeed as soon as construction began without the protection of (i) a geotextile membrane to separate the sub-base from the excavated clay surface beneath, and (ii) a perimeter cut-off drain to prevent the ingress of clay-laden water from the surrounding ground. Thereafter, conditions deteriorated gradually to the point at which, in very wet conditions in 2005, both the dynamic and foundation layers were found to be identically contaminated with fine, orange-coloured clay, and at the same time clay-laden water was observed running on to the pitches and through the sub-base layers at their north eastern corner. Mr Tipp's theory was presented in a confident and plausible manner, relying on scientific testing as well as on observed facts and circumstances. It therefore deserves to be considered with care.

[25] The defender's preparations for the proof, including investigation of the cause of the problems of which the pursuers complained, appear to have been of the late variety. According to Mr Gordon on Day 14, the defender did not instruct any expert investigation when litigation between the parties first commenced in the Sheriff Court in 1997. Although the summons in the present action was served in 2001, the defender again sought no expert assistance until Messrs Tipp and Pirie were approached in about May 2005, a matter of weeks before the proof began. A joint site inspection took place on 2 June 2005, and it is on the strength of what was observed, sampled and tested on that occasion that the defender's principal case has been developed. In consequence, the defender's pleadings say less than they might have done about what turned out to be his primary answer to the pursuers' claim; even in March 2006, Mr Tipp's views were plainly still evolving as he gave evidence in the witness box; and in consequence some key elements of his final position were not fully put to the pursuers' witnesses in cross-examination. I do not attach any blame to Mr Tipp for this state of affairs. The short timescale was not of his making, and I am not persuaded that (as was at one stage suggested on behalf of the pursuers) I should discount his evidence merely because, in material respects, it departed from the terms of the written report which he prepared in some haste only days prior to the proof.

[26] On the other hand, I cannot simply ignore the difficult situation in which Mr Tipp found himself. In my view, I am bound to take appropriate account of the fact that his report was hurriedly prepared on the strength of a single site visit and associated investigations; that its conclusions were necessarily reached without the benefit of long-term involvement and mature reflection; and that his evidence shifted quite markedly as his position was tested and challenged in court. In the same context, I must also recognise that Mr Tipp was, by qualification, a polymer chemist rather than a civil engineer or soils scientist, although he clearly had extensive practical experience relative to the design and installation of artificial pitches.

Site visit of 2 June 2005

[27] The joint site visit on 2 June 2005 took place after a night of heavy rainfall. It was still raining heavily when the visit took place, and there was evident widespread flooding of the pitch surfaces, with only one corner actually free of standing water. In these circumstances the outfall drainage was checked and found to be wholly or substantially blocked at a point downstream of the manhole to the north-east of the development. When this blockage was successfully cleared by means of specialist rodding and pressure jetting, a substantial outflow of water from the pitch construction was observed to last for several hours. The surface flooding gradually diminished until eventually (in Mr Tipp's words) the pitches "became playable", whereas according to Mr Pirie the amount of water on the pitches merely "dropped considerably" and became "visibly less". As his photographs nos. 23 and 24 showed, and as Mr Atwal emphasized, there were still scattered areas of ponding left some four hours after the drainage was unblocked. The observed effect of clearing the drains would seem to have been largely responsible for the defender's suggestion (already discussed) that the presence of surface water in and after October 1995 should be attributed to lack of connection of the downstream drainage at that time. Significantly, however, the problem experienced from October 1995 onwards did not involve wholesale flooding of the kind which occurred in 2005. On the contrary, it resembled the situation left behind once the 2005 flooding subsided. As against that, the relatively rapid disappearance of the floodwater did tend to confirm, in general terms, that none of the various layers of the pitch construction was entirely impervious to water, and that, in substantial measure, water could and did permeate through to the drainage system.

[28] When the north-eastern corner of the synthetic pitch surface was folded back, exposing the top of the dynamic layer, the latter was found to have an exceedingly low level of permeability - only 25 mm/hr, when the absolute minimum should have been several hundred. Although the synthetic carpet was itself heavily contaminated, its permeability was measured at 45 mm/hr, and after cleaning that figure rose to 2,500 mm/hr. Thereafter, a single trial pit was dug so that the composition of the sub-base layers could be ascertained by laboratory analysis. Within a relatively short time, however, the pit was seen to fill slowly from the sides with water which appeared to be discoloured by clay in suspension. Similar discoloured water was also seen flowing in under the vertical kick-boards which formed the eastern boundary of the pitches.

[29] In the laboratory, both sub-base layers were found to contain a high proportion of very fine material. Some 50 per cent of the dynamic layer and 30 per cent of the foundation layer passed the 0.6 mm sieve, and only 5 per cent of the dynamic layer had a particle size in excess of 5 mm. At the sampling point, the depth of the dynamic layer was measured in situ at 30-35 mm. On microscopic examination, the particles greater in size than 0.6 mm were found to be predominantly rounded, black in colour with flecks of mica, and consistent with the appearance of crushed granite. Although this seemed to undermine Mr Kidd's evidence that whinstone was used for Dri Pla in Scotland, the parties were in agreement that the difference between whinstone and granite was not material for the purposes of this action.

[30] There was thus no doubt that, as at June 2005, neither of the sub-base layers met the original contract specification. This replicated Mr O'Donnell's findings in 2000, but according to Messrs Tipp and Pirie the real question was whether that had also been the position in 1995, when the sub-base was first laid, or whether the observed flooding and its release, and the observed active contamination by discoloured water in the north-eastern corner of the development, might provide alternative explanations. In their view, the amount of pitch debris found in the outfall drainage helped to confirm the existence of a long-term problem.

Mr Tipp's conclusion

[31] The conclusion reached (primarily by Mr Tipp, but supported in general by Mr Pirie) was that contamination from outwith the pitch construction was indeed the most likely explanation for the long-term problem affecting the pitches. The active contamination process which was observed in extremely wet conditions in June 2005 could not be ignored. According to Mr Tipp, it was the obvious explanation for everything that had happened in the intervening years, especially in view of the fact that comparison with the particle size distribution tests carried out under Mr O'Donnell's direction in 2000 showed the degree of contamination to be progressively worsening with time. As against that, however, at pages 12 and 20 of his written report, Mr Tipp conceded that it was not possible to state whether, or to what extent, the sub-base layers were contaminated from the outset, and in his evidence on Day 18 of the proof Mr Pirie concurred with that view.

[32] At paragraphs 6.8 and 6.10 of Mr Tipp's report no. 7/5 of process, the contamination was envisaged as occurring "... from the top downwards", by clay washed on to the pitch surface from the surrounding higher ground during heavy rain. In addition, at page 11, Mr Tipp described "... the possibility" of upward contamination of the stone sub-base by clay, impairing its drainage capability. By the end of his evidence in court, however, Mr Tipp had substantially retreated from his emphasis on contamination occurring from above, postulating instead (a) contamination of the sub-base layers occurring laterally beneath the pitch surface, and (b) contamination occurring from below in the form of a "soup" of suspended clay particles within the sub-base layers during periods when the outfall drainage was not operational. The former mechanism was, it was said, illustrated (and its validity confirmed) by the observed seepage into the trial pit dug on 2 June 2005, and the latter was consistent with the significant flooding observed before the downstream drainage was unblocked.

[33] In advancing these views, Mr Tipp attached considerable importance to the fact that, of all the expert witnesses who gave evidence at the proof, only he and Mr Pirie had the advantage of seeing the pitches in seriously wet conditions. They were thus better placed than anyone else to judge how the pitches were in fact affected by heavy rainfall, and had indeed seen the contamination process at work for themselves. Moreover, their experience with the blocked drain, and with the effect of its being cleared, gave them great insight into the likely cause of standing water on the pitch surfaces. By comparison, the contrary views expressed by others were not soundly based. Mr Kidd's evidence as to the composition of Dri Pla should be rejected, as should all the other evidence which suggested that the surface water problems were due to initial disconformity of the sub-base layers to the contract specification. In general, Mr Tipp sought to criticise the basis on which that other evidence was given, even in areas where conclusions were consistent with his own.

[34] In fairness, however, as regards his own principal assessment, Mr Tipp conceded in the witness box that in making it he was handicapped by the nine-year gap in time; that his scenario of clay contamination from below was "... speculative, you might say"; that it was difficult (and undesirable) to extrapolate from one single set of test results; that for some reason no flow of discoloured water was evident until half an hour after the trial pit was dug; and that since the video from 1996/7 showed such water running down the eastern boundary of the pitches, it was unlikely that this could have caused problems on any of the pitches further west. In addition, as previously mentioned, Mr Tipp conceded that he had done no tests to prove that the particles which he found in the sub-base layers were identical to clay in the surrounding ground, or indeed to particles in the discoloured water which he saw.

Discussion

[35] Having given this matter anxious consideration, I am not persuaded that the defender's theory of external contamination is, in the end, any more than speculative, or that the evidence of Messrs Tipp and Pirie as to the likely source of the excess fines in the sub-base layers should be preferred to that of Messrs Kidd, O'Donnell and Gibb. For the reasons already given, I regard the latter evidence as generally impressive and reliable, and consider that in all probability the main cause of the pursuers' problems has from the outset been disconformity of the sub-base layers to the contract specification. The principal grounds on which I have come to reject the defenders' theory of external contamination may be briefly summarised as follows:

(i) Mr Tipp's conclusions are based on extrapolation from a single trial pit dug on 2 June 2005 in the north-east corner of the development. As he accepted, this was not an ideal situation. Questions must inevitably arise as to whether the state of the sub-base at that point was typical of the remainder, or whether the observed water flow conditions were merely localised phenomena. I note that even after most of the surface water had drained away on 2 June 2005, Mr Tipp did not take the opportunity of digging further trial pits, nor did he return on any subsequent date to check whether his observations and conclusions could be maintained in drier conditions or at different parts of the pitch construction.

(ii) Mr Tipp was unable to explain the delayed appearance of discoloured water in the north-east corner of the development some thirty minutes after the trial pit was dug. At one stage it was suggested to him that this might have had something to do with the high-pressure jetting that was going on nearby, but in the end the matter remained unresolved.

(iii) As mentioned in paragraph [34] above, discoloured water at approximately the same location was evident on the video footage taken between March 1996 and March 1997. Since that water was visibly flowing towards the south-east corner of the pitches, in accordance with the drainage gradient, it is hard to see how it could possibly have contaminated pitches further west. To do that, it would have had to flow in the opposite direction from all other surface and sub-surface water.

(iv) If Mr Tipp's theory were correct, one would have expected to see evidence of discoloured water affecting the north and west sides of the pitches, where the surrounding ground was also elevated to some extent. However, there was no apparent sign of that on the video, nor was there evidence to suggest any particular contamination of the sub-base in these areas.

(v) To some degree, Mr Tipp sought support for his theory from the appearance of a progressive increase in the level of fines in the sub-base layers. I do not find that evidence compelling. It was based on a comparison of particle size distribution tests conducted five years apart and on samples taken from different locations. The two trial pit analyses from 2000 yielded different results, at least with respect to the content of larger-sized stone, suggesting that different batches of material used on site might vary to some degree. It is not surprising that a further single pit dug near the edge of the construction should have yielded a different result again. In addition, as Mr O'Donnell explained on Day 7 of the proof, all of the samples were small, and percentage results could easily be distorted by the presence or absence of a stone or two from the foundation layer.

(vi) While the synthetic carpet was clearly in a filthy and degraded condition by 2005, there was no evidence that it was materially contaminated by orange-coloured clay. Indeed Mr O'Donnell positively confirmed that the carpet and its sandfill were not contaminated with clay when he inspected them in 2000. Along with factors (iii) and (iv) above, I believe that this was a major reason why Mr Tipp found it necessary to depart from the confident assertion in his written report regarding contamination "... from the top downwards", and retreated to a position in which the principal contamination was seen as occurring from the sides and from below.

(vii) Leaving aside the fact that this new position was not directly put to the pursuer's witnesses, I am not convinced that it can properly account for the historical development of the problems on site. These problems began almost as soon as the dynamic layer was laid on certain pitches in 1995, and it seems highly unlikely that sufficient lateral contamination could have occurred over the very short timescale involved. Moreover, given that the adjacent car park showed no sign of ponding, the evidence before me was conflicting, and ultimately inconclusive, as to whether there could have been sufficient rainfall prior to October 1995 to fill the reservoir capacity of the sub-base layers and cause water to lie on the pitch surfaces. In any event, even acknowledging that the downstream drainage remained unconnected until December 1995, it is hard to see how a gradual build-up of static water within the pitch construction could have created Mr Tipp's clay "soup" in the first place, far less raised it to the level of the dynamic layer and artificial surface of the various affected pitches seen on the video. By March 1997, when Weeks Technical Services examined the dynamic layer, its top surface plainly gave immediate cause for concern, and the same applied as at January and February 1998 when that top surface was seen and condemned by Messrs Kidd and Gibb respectively.

(viii) Even more significantly, when Mr O'Donnell carried out his initial investigations in 2000, he found a distinct interface between the sub-base layers and the subjacent clay formation, with no material sign of cross-contamination between them. The percentage of Mr O'Donnell's subjacent clay sample which had a particle size smaller than 0.06 mm was approximately five times greater than the equivalent percentage within either of the sub-base layers. More importantly, the sub-base samples which he took and tested were not contaminated with a high percentage of fine orange clay. According to him, any possible upward migration of clay was precluded by the well-graded foundation layer which presented no voids into which clay could penetrate. In any event, had such contamination from below occurred, it seems improbable that the layer to be worst affected should have been, not the foundation layer with which the clay formation was in direct contact, but the dynamic layer above which would not be reached unless, on occasion, any water trapped in the sub-base reservoir exceeded the depth of the foundation layer - between 120 and140 mm, according to the trial pit logs reproduced in Mr O'Donnell's report.

(ix) The pattern of scattered ponding across different pitch surfaces is, I think, very difficult to reconcile with the theory of widespread external contamination. Much more likely, in my view, is that the observed pattern principally reflects (a) some measure of variability within the disconform sub-base materials, and (b) the effect of compaction, first by construction activity and then by sports usage, rendering discrete areas relatively less permeable than the remainder. The problem was never one of total impermeability, but only of slow drainage in places, and it is in my view of some significance that when the outfall blockage was cleared in June 2005 the pitches actually drained fairly well over a period of some four hours, leaving only scattered areas where ponding persisted.

(x) Mr Atwal's evidence was that when the problems with surface water first arose, ETC told him to check the state of the drains and he did so. According to him, one of the first steps taken by ETC themselves was to rod the drains. Mr Kidd gave unchallenged evidence of having checked the manhole in the south-east corner of the site in January 1998, finding it dry with only a trickle of water running through. Both of the Atwal brothers described sweeping surface water into the same manhole from time to time, as a last resort. Furthermore, Mr O'Donnell appeared to find no material problem with the drains in 2000. If all of that evidence is correct, and I have no reason to hold otherwise, then it follows that the main drainage system could not have been non-operational over the whole period from 1995 to 2005, and the situation which Messrs Tipp and Pirie discovered in June 2005 could have no direct bearing on the state of the pitches more than nine years earlier.

(xi) It is clear that the serious flooding which Messrs Tipp and Pirie saw in June 2005, which according to Mr Tipp was 150 mm deep in places and covered the whole area of the pitches other than the north-east corner, was largely attributable to a downstream blockage in the drainage system. There can in my view be no other explanation for the fact that the flooding substantially disappeared, over a period of hours, when that blockage was cleared, although the extent of the blockage was called into question by Mr Pirie's photograph no. 11 showing water flowing into the top of a manhole before clearance works began. Significantly, however, as Mr Pirie conceded and Mr Atwal emphatically confirmed, some surface water still remained in scattered patches after the main flooding subsided. In all the circumstances I am unable to regard the 2005 blockage as providing a plausible explanation for the scattered ponding of water on different pitch surfaces at any date.

(xii) In addition, while accepting that the blockage of June 2005, whether total or partial, must have existed for some time, I cannot regard the amount of pitch debris in a single manhole as a reliable indicator of how long that might have been. Since much of the debris came from the surface of the synthetic carpet, and could not possibly have filtered through the sub-base layers to reach the drains, it follows that it must have entered the drainage system through the top of a manhole. That would, I think, be consistent with the evidence of the Atwal brothers to the effect that they sometimes swept away water from the pitch surfaces by that route.

Conclusion on cause

[36] For all of these reasons I am satisfied, on the balance of probabilities, that the pursuers are correct in attributing their surface water problems to a material disconformity of the sub-base layers, especially the dynamic layer, to the contract specification. As it seems to me, this conclusion is positively supported by the factual and opinion evidence which was led on the pursuers' behalf, and is further fortified by the ultimate absence of any credible alternative explanation. However, contrary to the submission made by counsel for the defender in reliance on Rhesa Shipping Co SA v Edmunds 1985 1 WLR 948, this is not a situation in which rejecting the defender's contentions has somehow led me to accept an extremely improbable case put forward by the pursuers. Clearly, an intrinsically improbable case will not be salvaged by the mere fact that something even more improbable is rejected, but as explained earlier in this opinion I consider that the pursuers have led more than enough credible and reliable evidence to establish the probable cause of the problems of which they complain. In my view there are too many factors pointing positively in that direction to allow me to hold otherwise, and the defender's failure to set up a plausible alternative merely lends force to that conclusion. Reverting to the position of the specialist sub-contractors ETC, on which counsel for the defender placed great emphasis in her submissions, I do not consider that a major error on their part in laying the wrong materials can per se be regarded as so improbable that it must be discounted altogether. All human beings are fallible, and experience shows that even reputable contractors do, from time to time, get things wrong. With hindsight, it may be difficult to understand how such an error could have been made in this case, but I am satisfied, on the balance of probabilities, that the sub-base layers were indeed constructed with the wrong materials, and that (without necessarily ruling out the possibility of cross-contamination, or even of some degree of external contamination, over the years) this was the primary cause of the pursuers' problems from 1995 onwards.

The defender's legal liability
General
[37] The next question to be determined is whether, in the absence of the contractors and sub-contractors against whom the pursuers' claim might preferentially have been directed, the defender has been shown to have been in breach of his contractual obligations as the pursuers' architect and thus liable to them in damages. There is now no dispute between the parties (i) that the defender undertook to provide architectural services to the pursuers in connection with the project; (ii) that these services related, not only to the pavilion which the defender designed, but also to the artificial pitches in respect of which the defender had no design input and Mr Atwal engaged ETC as specialist sub-contractors; (iii) that although the contract between the parties did not formally incorporate the RIBA Standard Form of Agreement for the Appointment of an Architect (the 1992 edition of which formed no.6/11 of process), the defender's duties of inspection quoad both pavilion and pitches would broadly have coincided with those set out in paragraphs K-L 01 to 08 of that document; and (iv) that the defender's performance now falls to be measured against the standard of an architect of ordinary competence exercising reasonable care and skill. As regards (iii) above, paragraphs 04, 05 and 08 were of particular relevance, imposing general obligations on an architect to inspect materials delivered to site, to inspect the progress and quality of the works at intervals, and where appropriate to instruct sampling and testing of materials and workmanship.

[38] As against that, it is important to recognise that - in the absence of express contractual provision - no architect owes his client a duty to guarantee the success of a project, nor to supervise every aspect of the work as it is performed by contractors, nor even to inspect the progress of the works on anything other than a periodic basis. Here the defender's duties related primarily to the pavilion which he had designed, and in which a wide array of technical matters required attention; his entitlement to fees arose primarily in connection with the pavilion works; his letter to Mr Atwal dated 31 August 1992 (appendix 3 of no.7/7 of process) referred only to "...an element of site inspection during the course of the contract"; and in practice (through his employee Mr Gordon) he inspected the works, including the pitches, at approximately fortnightly intervals which, in the main, coincided with formal recorded site meetings. It is also relevant to note that where, as here, specialist sub-contractors are involved, technical matters concerning the sub-contract works or installations may well be outwith the knowledge and expertise of the ordinary architect. The case against the defender must therefore turn on what would or would not reasonably be expected, in that limited context, of an architect of ordinary competence exercising reasonable care and skill.

[39] It is well settled that liability for professional negligence can only arise where, on the evidence, no ordinarily competent and careful member of the relevant profession could have been guilty of the particular failure alleged against the defender:- cf. Hunter v Hanley 1955 SC 200; Bolam v Friern Hospital Management Committee 1957 1 WLR 582. Applying that test, it is not for the court to choose between conflicting practices where both are supported by a responsible body of opinion within the profession concerned. However, this does not mean that the mere existence of expert evidence favouring the defence will in all cases be sufficient to defeat a pursuer's claim. In Michael Hyde & Associates Ltd v J D Williams & Co Ltd 2001 PNLR 8, Ward LJ gave examples (at paragraph 25) of situations in which expert evidence favourable to a defender would not necessarily have that effect. These were (i) where the professional opinion relied on was not capable of withstanding logical analysis; (ii) where the evidence in question fell short of reflecting a responsible body of opinion within the relevant profession; and (iii) where the act or omission alleged against the defender did not require the exercise of any special skill. In the same case Sedley LJ reached the same conclusion on a rather broader basis, and at paragraph 46 made the following observation:-

"But in general it can be said that the Bolam test is typically appropriate where the neglect is said to lie in a conscious choice of available courses made by a trained professional, and that it is typically inappropriate where it is in an oversight that the neglect is said to lie."

For present purposes, it is perhaps sufficient for me to indicate general agreement with the approach of the Court of Appeal in Michael Hyde, without necessarily accepting that that decision exhaustively identified the circumstances in which a finding of professional negligence might be made notwithstanding the existence of expert evidence supportive of the defender.

[40] Against that background, counsel for the pursuers invited me to hold that, on the evidence, Mr Gordon was indeed guilty of professional negligence at and after the time when the ponding of water first appeared on pitch surfaces. In this regard he founded heavily on certain concessions made by Mr Gordon himself, allied in particular to Mr Gibb's forthright criticism of Mr Gordon's conduct. The defender's position, on the other hand, was that professional negligence on Mr Gordon's part had not been proved, and on the strength of Mr Pirie's evidence in particular counsel for the defender asked me to hold that Mr Gordon was blameless and should be exonerated altogether.

[41] An unusual complicating feature here was that Mr Gibb's expert opinion evidence was given before Mr Gordon himself went into the witness box, with the result that Mr Gibb had to proceed on the basis of certain assumptions as to what Mr Gordon actually saw or knew in late 1995. This difficulty was compounded by the fact that one of the crucial parts of Mr Gordon's defence, namely certain advice on unconnected drainage which he claimed to have received from Europa's site representative Mr Travers in the latter part of October 1995, was not focused on Record, nor did it appear in any lodged report, nor was it even put to Mr Gibb in cross-examination. The other side of the coin is that Mr Pirie's expert opinion evidence was given after that of Mr Gordon, and he was thus placed in the position of having to react, at fairly short notice, to the latter's concessions in the witness box which may or may not have been anticipated. In addition, Mr Pirie was allowed to be present in court throughout the evidence of both Mr Gordon and Mr Tipp, with the result that he was perhaps at some risk of his evidence being affected, consciously or unconsciously, by what he had heard.

The critical issue
[42] As the proof proceeded, the critical issue between the parties on this aspect of the case became fairly narrowly defined. Although Mr Gordon, somewhat surprisingly, had no knowledge of the nature and composition of ETC's proprietary Dri Pla mix which was specified for the dynamic layer, and had never seen the bill of quantities in which the intended foundation layer was identified as "Type 1X sub-base lightly compacted", he was on his own admission aware from the start that both of the sub-base layers had to be free-draining if the pitches were to perform satisfactorily. In his evidence-in-chief, he was inclined to skirt round this a little, maintaining that he had no knowledge of the weather conditions in which the pitches were supposed to be playable. However, under cross-examination, he conceded knowledge that the pitches were intended to be free-draining and available for use, day and night, in virtually all weathers. Mr Gordon was also aware, again on his own admission, that by mid-October 1995 surface water could be seen ponding on various pitches where Dri Pla had been laid. Further, he realised that this was a matter of potential significance, causing him concern as to whether the sub-base fulfilled the free-draining requirements of the contract. In that state of affairs, however, his only response was to invite Mr Travers, Europa's contracts manager, to comment in the course of a walk round the site. When the latter advised him that the downstream drainage was yet to be connected, Mr Gordon simply assumed that this accounted for the appearance of surface water and took no further action. He did not ask ETC, the pitch specialists, for their observations on the state of their partially-completed works, nor did he do anything to check Mr Travers' advice by looking at the actual state of the drains or of the pitch construction. The key question for determination in these proceedings is thus relatively straightforward and non-technical, namely whether a competent and careful architect, having become aware of surface ponding and realised its potential significance, should have done more than Mr Gordon did to ensure the proper protection of the pursuers' interests. Apart from his brief conversation with Mr Travers, Mr Gordon essentially did nothing at all. Was this truly acceptable for an architect of ordinary competence, exercising reasonable care and skill, or was it not?

Mr Gordon's position
[43] In order to answer that question, it is necessary to consider in a little more detail what Mr Gordon actually saw and knew in the latter part of 1995. As regards water lying on the pitch surfaces, his position was that on one occasion only, most probably 17 October, he saw some ponding on top of the dynamic layer on one or two pitches. Only small, randomly distributed puddles or pools were involved; they were not deep; and the ponding was very similar, although perhaps not so extensive, as that which appeared on the video footage of pitch 1 on 17 October. According to Mr Gordon, the ponding which he saw was certainly on pitch 1 and, he thought, also on pitch 2, with pitch 4 being mentioned at one point as a further possibility. In the witness box, he initially tended to favour 31 October as the date when he saw the ponding, following some ten days of heavy rain. However, in cross-examination, he accepted that his observation must relate to 17 October because, as the video showed, the synthetic carpet had already been laid on pitch 1 by the date of the later site meeting.

[44] Mr Gordon then conceded that, having seen water lying on the Dri Pla on one or more pitches, he realised that this was a matter of concern because the fundamental requirement for the pitch construction was that it should be free-draining. At some point on the day of the next site meeting on 31 October, at which Paul Waddington of ETC was not present, Mr Gordon mentioned his concern to Mr Travers, who told him (i) that the main drains were complete but had not been connected to the sewer in the road; (ii) that Europa were awaiting completion of a silt trap and connection which were the responsibility of ETC; and (iii) that in the absence of an outfall the drainage pipes would backfill 100 per cent, with the result that the last ten days of water would still be there. The latter reference was, I take it, to the adverse weather conditions which had been experienced in the ten days immediately preceding 31 October, and which were recorded at paragraph 4.04 of the minute of the site meeting held on that date. Strangely, however, although the continued ponding of surface water was plainly visible on the video footage of 31 October, and must have been there to be seen at the time when the conversation with Mr Travers took place, Mr Gordon continued to maintain that it was only on the one occasion that he actually saw it, and that the ponding which he saw was not as serious as the video suggested. It is also strange that Mr Gordon's concern was never raised or recorded at any site meeting, and that no reference to unconnected drainage appeared until six weeks later in paragraph 3.10 of the minute of the site meeting held on 11 December 1995 (where it appeared as a matter raised by the contractor). From October 1995 onwards, moreover, Mr Gordon continued to issue interim certificates without any deduction in respect of any defect in the works.

Discussion
[45] In the foregoing circumstances, I have serious doubts as to the credibility and reliability of Mr Gordon's stated recollection of (a) the extent and distribution of the surface water which he saw on the pitches in October 1995; (b) the date or dates on which such observations were made; and (c) the date and circumstances in which the matter was allegedly raised with Mr Travers. The video footage presents a fairly consistent picture on 17 and 31 October, and if surface ponding had been a cause for concern on the earlier date, it seems inevitable that Mr Gordon must again have been very conscious of its presence a fortnight later. Moreover, his account of a conversation with Mr Travers on 31 October was not supported from any source; it is hard to believe that such an important conversation regarding both drainage and pitches would not have been recorded in any site minute; no reference to it appeared in the defender's pleadings; Mr Tipp does not seem to have known about it; paragraph 5.16 of Mr Pirie's report is inconsistent with it; and it was never put to any of the pursuers' witnesses in cross-examination. I acknowledge that these matters were only faintly raised, if at all, with Mr Gordon in cross-examination, and it is also true that his evidence concerned events which occurred nearly 10 years ago. However, given the highly unsatisfactory circumstances in which the claimed conversation was first raised, the unexplained discrepancies in the available evidence, and the absence of support from Mr Travers or from any other source, I am not willing to accept Mr Gordon's unvouched and unsupported testimony on a matter which has become crucial to his defence to the allegations against him. I have the clear impression that in the witness box he was concerned, not only to minimise the extent of the surface water problem of which he was aware, but also to maximise the steps which he took in that regard and the speed with which he took them. He also sought to volunteer implausible excuses for the inaction alleged against him. At one point, for example, he attempted to maintain that, since their Mr Waddington did not happen to be present on site on 31 October 1995, he had no opportunity to raise his concerns with ETC. At another, notwithstanding his claimed reliance on Mr Travers' advice, he maintained that there was no possible way in which the true state of the drainage system could have been ascertained at that time.

[46] Having said all that, I propose for the moment to follow the approach taken by counsel for the pursuers and, in testing the legal issue, to take Mr Gordon's evidence pro veritate. On that approach, as previously indicated, counsel founded heavily on Mr Gordon's concessions as already recorded, and in particular on the following passage which appears at the end of Mr Gordon's cross-examination on Day 14 of the proof:-

"Q. In the course of most probably the site inspection on 17 October, you discovered and saw ponding of water on certainly one and perhaps two pitches?

A. Yes

Q. Ponding of water, as an architect exercising ordinary competence and ordinary care, you would have realised was of potential significance because the pitches were intended to be free draining?

A. Correct.

Q. But that on seeing that ponding you simply spoke to the person with whom you were at the time, namely the site manager of the main contractor Europa Construction?

A. Yes.

Q. Though he was a civil engineer as you have said in chief in fact Europa Construction had no involvement in respect of the pitches?

***

A. They were not taking under any of the work but they did have a responsibility with regards to and looking after managing the nominated subcontractor.

Q. And so far as Europa Construction then is concerned, they had no expertise in respect of the installation of artificial football pitches?

A. Not that I am aware of.

Q. That based upon your conversation with Mr Travers, you made an assumption that the problem was attributable to backing up of drains?

A. Yes.

Q. In fact, an architect of ordinary competence exercising reasonable care, knowing the potential significance of water standing on what should otherwise be a free draining surface would have gone further and would have carried out some form of investigation. Do you accept that or not?

A. Eh, no.

Q. That an architect exercising that legal duty of care would at the very least have asked the specialist subcontractor En Tout Cas to comment?

A. Yes.

Q. And you did not do so?

A. No, because the problem as I saw it was something that Europa Construction were responsible for.

Q. But that is assuming your deduction that the problem was the drains to be correct.

A. Yes.

Q. What I am suggesting to you is that an architect of ordinary competence exercising reasonable care on a matter of importance like this the performance of a free draining structure, would not have rested on an assumption. He would in fact have asked the specialist subcontractor at the very least to confirm that his assumption was correct?

A. Yes.

Q. But you did not do so?

A. No.

***

Q. Perhaps I will just leave it at this, that by failing to carry out in fact any investigation in relation to the acceptability of the assumption that you made that the source of this problem was the drains, you fell below the standard that in law is required of an architect exercising reasonable skill and care. Do you accept that?

A. Eh no.

Q. Why don't you accept that, if you accept that an architect exercising reasonable skill and care would at the very least inquire of the subcontractor specialist what the problem was?

A. The specialist subcontractor I don't think was there at that particular time, and we were strongly of the opinion it was because the drains were not connected.

Q. Sorry, who was strongly of the opinion?

A. Myself and Jim Travers of Europa Construction.

***

Q. But surely an architect exercising reasonable skill and care who sees something that is potentially a very significant problem doesn't get deflected by the fact that the man who may have the answer is to his side or at the end of a phone?

A. Yes. Correct.

Q. This is why I want to press you: if you accept that an architect exercising reasonable skill and care would have followed up this concern with the specialist, i.e. En Tout Cas, does that not have the result that you accept that by having failed to do so in this case you fell below the standard being expected of an architect of ordinary competence exercising skill and care?

A. With inspections perhaps, yes."

[47] Although in re-examination Mr Gordon went back to minimising the significance of what he had seen, asserting that he did not think it a serious problem at the time, I consider that even the partially-retracted admissions which he made in cross-examination go a very long way towards entitling me to make a finding of professional negligence in this case. If the choice lay between doing something or doing nothing to check the validity of Mr Travers' alleged comments, then on Mr Gordon's own admission he took the latter course. Despite his claimed reliance on the expertise of ETC in the field of artificial pitch construction, he took no steps to check with them the proper composition and characteristics of the sub-base materials as specified. More importantly, he did not ask them to justify the performance of the pitches at that stage, nor even to comment on the observed ponding which they themselves must also have seen. In parallel, he did nothing to investigate the state of the drainage, with particular reference to the extent to which the sub-base reservoir was in fact filled with static water, nor did he carry out even the simplest examination of the top surface of the dynamic layer to see if that yielded any answer to the problem. Under the contract, of course, he had the power to instruct sampling or testing of any part of the constructed sub-base, but even a simple permeability test would in all probability have been sufficient to divert attention away from the drainage and in the direction of the materials themselves. In my opinion, on an issue so fundamental to the fitness of the pitches for their intended purpose, and bearing in mind also Mr Gordon's alleged discovery that important drainage connection work had not been carried out, it is simply not credible that he should have been entitled to take none of these steps while at the same time continuing to certify all aspects of the contract works for payment. Even on his own account, he inexplicably did nothing at all for a fortnight before allegedly raising his concern regarding surface water with Mr Travers.

[48] In considering the expert evidence led from Messrs Gibb and Pirie on this aspect of the case, I note in passing that each side's witness was criticised as having been affected by "momentum" flowing from a personal belief as to what further investigations in 1995 would have disclosed. Mr Gibb, it was said, believed that the sub-base materials were intrinsically defective, and was thus critical of Mr Gordon for leaving matters unexplored. Mr Pirie, on the other hand, was said to be a convert to Mr Tipp's theories and conclusions, and accordingly comfortable with Mr Gordon having failed to take the steps which the pursuers desiderated. Over and above that, counsel for the defender challenged the reliability of Mr Gibb's evidence as having been based on erroneous assumptions as to what Mr Gordon actually saw and knew in October 1995. For his part, counsel for the pursuers contended that Mr Pirie's approach to the duties of a competent and careful architect was altogether too lenient, and should be discounted for that reason.

[49] It is quite possible that the evidence of the two experts was influenced, in different directions, by the "momentum" which counsel identified. However, I do not think that it would be appropriate to discount the evidence of either man on that ground alone. So far as Mr Gibb's evidence is concerned, he did not have the opportunity of hearing the concessions which Mr Gordon subsequently made in the witness box, nor did he hear Mr Gordon's claims to have seen rather less than the video footage showed. In my view Mr Gibb was justified in assuming that Mr Gordon would have seen broadly what the videos disclosed, but in any event he was entitled to take the view that any competent and careful architect would have appreciated that the presence of any lying water on the top of the dynamic layer was a matter of real concern. In this, he correctly anticipated the really important concession which Mr Gordon made. What mattered was that, in places, the pitch surfaces were plainly not free-draining, and in that regard precise locations and dates were not of critical significance. Accordingly, I do not consider that Mr Gibb's evidence was weakened by the assumptions on which it proceeded. In his view, any architect should have queried the presence and cause of water lying on the pitch surfaces, and in particular should have demanded an explanation from ETC as the responsible sub-contractors. Because it was never put to him, Mr Gibb also had no opportunity to comment on Mr Gordon's claim to have relied on a conversation with Mr Travers of Europa regarding unconnected drainage. However, at the beginning of Day 11 of the proof, he did comment on the passage in Mr Pirie's report which suggested that Mr Gordon, of his own accord, had formed the belief that unconnected drainage was to blame. Mr Gibb reacted to that suggestion with incredulity, pointing out that no relevant entry appeared in any site minute, and that in place of any expression of concern the minutes from October 1995 onwards showed only satisfaction with the progress of the works. At this time, while substantial contract monies remained outstanding, the architect had a real hold over the contractors, and to a lesser extent he continued to have a hold over them during the defects liability period. It was therefore wholly unacceptable for Mr Gordon to have taken no effective steps to protect the pursuers' interests. Had the matter been raised with ETC when it should have been, the probability was that the true cause would have been identified and that ETC would have remedied the situation.

[50] In my opinion Mr Gibb's evidence was restrained and persuasive, and reflected a common sense view of the situation. It was also broadly consistent with the concessions subsequently made by Mr Gordon in the witness box. Mr Gibb was an experienced and well-respected architect, and in the circumstances I am satisfied that I should accept the conclusions which he put forward, and the reasoning on which they were based.

[51] By contrast, while acknowledging that Mr Pirie was also an experienced and well-respected architect, I am unable to accept the views which he expressed in this case. He was, of course, in a difficult position from the outset, given the various concessions which Mr Gordon made in the witness box, but it does not seem to me that his evidence came anywhere near neutralising these concessions or persuading me that they should not have been made. According to Mr Pirie, a competent and careful architect would have had to rely on ETC's knowledge of the sub-base materials and how they should perform, yet he saw nothing wrong with Mr Gordon's failure to consult ETC when an apparently significant problem arose. He did not seek to criticise the absence of any mention of the problem in contemporaneous site minutes, nor did he query the significant delay before any record of the unconnected drainage appeared. He did not criticise Mr Gordon for doing nothing between 17 and 31 October 1995, or for continuing to issue unqualified interim certificates, or for expressing himself as satisfied with progress in the site minutes, or ultimately for granting a certificate of practical completion without seeking to verify the true cause of a continuing problem. His position was simply that having mentioned his concerns to Mr Travers, and having received an apparently logical reply, an architect such as Mr Gordon was entitled, without more, to assume the correctness of that reply. In my opinion, when faced with the uphill struggle of trying to overcome the concessions which Mr Gordon made in the witness box, Mr Pirie proposed far too lenient a standard for the competent and careful architect. In this, he was at variance with Mr Gordon himself, and with Mr Gibb, and in my view also with common sense having regard to the video evidence and the picture presented by the site minutes between October and December 1995. In all the circumstances I am unable to regard Mr Pirie's evidence as a reliable guide to what might, in late 1995, have been expected of an architect of ordinary competence exercising reasonable care and skill, and bearing in mind the non-technical nature of the omission alleged against Mr Gordon it seems to me that that evidence can be discounted on all of the grounds discussed at paragraph [39] above. It may be that, if Mr Pirie had not been inclined to believe that the surface water problems in late 1995 were attributable to unconnected drainage, the whole tenor of his evidence would have been different. But as matters stand I have come to the view that, on the critical issue, the evidence of Mr Gibb, taken together with Mr Gordon's concessions, is to be preferred to that of Mr Pirie.

Conclusion on liability
[52] For all of these reasons, it seems to me that the pursuers have successfully established their case of professional negligence against Mr Gordon and, through him, against the defender. Had it been necessary for me to do so, I would have held (i) that Mr Gordon could not have failed to see the extent of surface ponding shown in the video footage of both 17 and 31 October 1995, (ii) that he did not in fact raise any concern with Mr Travers on 31 October as he claimed, and (iii) that the matter of unconnected drainage did not arise until the contractors mentioned it at the site meeting of 11 December 1995. In that situation, which would be consistent with the surrounding facts and circumstances, including Mr Gordon's other actings over the relevant period, he unaccountably did nothing to ascertain the cause of a visible problem which he knew to be of potentially fundamental importance. It is, however, unnecessary for me to go that far, because I am satisfied that, even on his own account taken at face value, Mr Gordon fell below the standard to be expected of an architect of ordinary competence exercising reasonable care and skill. His claimed conversation with Mr Travers was significantly delayed; it was not subsequently followed up to any degree; and in the whole circumstances I am unable to accept that this could realistically constitute a sufficient discharge of the defender's legal responsibilities towards the pursuers.

Causation
[53] As I see it, the issue here is simply whether, if Mr Gordon had appropriately pursued his concerns regarding surface water in October 1995, the pursuers' continuing problems and consequent losses would probably have been avoided. According to Mr Gibb, the answer was clear. Had Mr Gordon raised the matter with ETC, asking them to justify the state of the partially-completed pitches, ETC would in all probability have investigated the matter and reached the same conclusion as was reached by Weeks Technical Services, Charles Lawrence (Scotland) Limited, and Messrs Kidd, Gibb and Sheard in 1997 and 1998. It was then probable that they would have rectified the situation at their own expense. They were renowned contractors with a reputation to maintain, and in late 1995 they would also have been under commercial pressure to comply while significant payments remained outstanding under their sub-contract. Over and above that, the rectification cost in 1995 was relatively small, being equivalent to only a fraction of the outstanding contractual payments. However, Mr Gibb went further and contended that, irrespective of ETC's response, a competent and careful architect would have (i) checked the state of the drainage, and (ii) ordered the sampling and testing of pitch materials, with a view to satisfying himself of the true position. Admittedly sampling and testing would have had some cost implications for the pursuers, but on a matter of potentially fundamental importance an architect should nevertheless have proceeded to exercise the contractual powers vested in him.

[54] Mr Pirie, on the other hand, sought to cast doubt on what would have happened, perhaps again from the standpoint of one who believed that the unconnected drainage was the real cause of the trouble. According to him, it was very difficult to judge how ETC would have reacted in this entirely hypothetical situation. Moreover, given the pursuers' past insistence on cutting costs at every turn on this project, it was unlikely that they would have agreed to meet the cost of sampling and testing the pitch materials.

[55] In the latter context counsel for the defenders further argued that, since the full extent of Mr Gibb's evidence had not been put to Mr Gordon in cross-examination - the only suggestion to Mr Gordon being that it would have been prudent for him to ask ETC about the surface water on the pitches - the matter of sampling and testing, and its likely outcome, could not properly be taken into account.

[56] In my opinion, the pursuers' contentions are to be preferred on this issue. In practical terms the choice is between, on the one hand, ETC reacting in broadly the same way as they did later on, when they were under no contractual obligation or financial pressure to do so, and, on the other, the development of some sort of stalemate in which the true cause of the problem would have remained unresolved, and/or the contractors (including ETC) would have resisted demands for remedial action notwithstanding the subsistence of the contracts and the threat of outstanding payments being withheld. As it seems to me, the former alternative may legitimately be inferred from the whole surrounding facts and circumstances, and is by far the more likely consequence of appropriate action being taken by Mr Gordon. I am not prepared to accept that the problem with the pitch materials would have remained unidentified if the matter had been appropriately pursued, and I also think it highly unlikely that, irrespective of the contractual situation, a company like ETC would have declined to undertake remedial works. In reaching this conclusion, I am content to proceed on the basis that Mr Gordon's duty was, at the very least, to approach ETC and ask them to justify the state of the pitches. On the balance of probabilities, it seems to me that that would have been sufficient to secure a favourable outcome from the pursuers' point of view. Had it been necessary, however, I would also have held that in the event of any lack of co-operation on ETC's part, a competent and careful architect should have insisted on (a) checking the drainage and (b) sampling and testing the pitch materials in the exercise of his contractual powers. Either way, in my opinion, the end result would have been the same, and the pitches would have been rectified at no cost to the pursuers.

[57] In the event, of course, Mr Gordon never raised the matter with ETC (or formally with the main contractors Europa) in 1995; without deduction, he certified all work for payment and issued a certificate of practical completion; the defects liability period was allowed to elapse without appropriate action being taken; no warranty was obtained from ETC to allow the pursuers to institute a contractual claim against them; and of course Europa and then ETC subsequently went into liquidation. It is, in my view, highly unlikely that such a lamentable sequence of events would have occurred if Mr Gordon had not been professionally negligent. I therefore decline to make any such finding, and hold instead that the pursuers' case on causation has been proved.

Damages
General
[58] In presenting his submissions at the end of the proof, counsel for the pursuers referred me to the three alternative calculations which were put forward by Mr Howard Ounsley in his updated report no.6/63 of process. As a matter of law, it was well settled that the measure of a pursuer's loss might be ascertained by reference to several different approaches, none of which need necessarily be determinative:- cf. Haberstitch v McCormick & Nicholson 1976 SC 1, esp. per Lord President Emslie at pp.9-10. As Lord President Clyde put it (quoting Lord Stair) in Duke of Portland v Wood's Trustees 1926 SC 640, at p.652, "It is rather in the arbitrament of the Judge to ponder all circumstances". It was also well settled that while contractual damages might prima facie fall to be assessed as at the date when a cause of action accrued, there was no bar to a later assessment where that was necessary to achieve restitutio in integrum, and in particular where a pursuer's impecuniosity had precluded the carrying out of rectification works at an early stage when costs were lower:- cf. Bevan Investments v Blackhall Struthers 1977 11 BLR 78; Dodd Properties (Kent) Limited v Canterbury City Council 1980 1 WLR 433.

[59] Against that background, Mr Ounsley's three alternative calculations were as follows:

(i)	Loss of profits sustained by the pursuers over the 8 years from 1996-2003 inclusive:	£585,000
(ii)	Diminution in the current market value of the development as a going concern:	£355,000
(iii)	Current cost of rectifying the pitch defects:	£221,000

In theory, more than one of these heads of loss might be appropriate in the circumstances of a given case, but at the end of the proof counsel for the pursuers invited me to grant decree in his clients' favour for £585,000, which failing £355,000, which failing £221,000, in that order. The primary claim for loss of profits alone appeared to depend largely on the concession that, if the pitches had been free of defects, then out of their operating profits the pursuers would have had to meet all capital costs such as the (now urgent) cost of renewing the pitches at the expiry of their natural life. On this basis it was suggested that if an award for loss of profits were to be made, no additional claim for rectification costs, or for diminution in value, would be appropriate.

Loss of profits
[60] As succinctly explained by Mr Ounsley in his updated report, the pursuers had plainly lost substantial profits by comparison with even a conservative view of the commercial potential of such a development. Mr Ounsley was a very experienced valuer with particular expertise in the field of artificially-surfaced sports facilities, and had no difficulty in calculating (by standard means) the potential annual profits which he thought the Glenrothes facility was reasonably capable of generating between 1996 and 2003. When compared with the pursuers' actual profits in the same years, this brought out a cumulative shortfall equivalent to the principal sum sued for, namely £585,000.

[61] Counsel for the defender was severely critical of this aspect of Mr Ounsley's report, maintaining that no proper evidence had been led to justify any award for loss of profits in this case. On one side of Mr Ounsley's calculation were figures which involved no assessment of the pursuers' ability to manage and run a facility of this kind, and thus bore no relation to reality. In addition, these figures unduly favoured the pursuers in connection with booking levels, days of operation and the like. The other side of the comparison involved figures derived from the pursuers' annual accounts, but the accounts themselves did not disclose how far (if at all) the progress and profitability of the enterprise had been adversely affected by the surface water problem. Vague general evidence on these matters had been given by the Atwal brothers, but astonishingly none of the pursuers' business records had been produced for the assistance of the court. There was thus no vouching to show the number and source of bookings from year to year, the extent and timing of cancellations due to pitch problems, or the apparent effect of such cancellations on the pursuers' trading. The court was being asked to award a substantial arithmetical shortfall on the assumption that it reflected the adverse consequences of pitch defects. However, the validity of that assumption was not proved, and the arithmetical shortfall might just as easily reflect the pursuers' inexperience and lack of appropriate management skills. Since the true position could not now be ascertained, and the court could only guess at the level of an appropriate award, it would be inappropriate for any loss of profits to be awarded at all.

[62] By way of reply to these criticisms, counsel for the pursuers commended Mr Ounsley's qualifications and the clarity of his report, and submitted that on all relevant matters of detail the evidence of the Atwal brothers was sufficient and should be accepted. Mr Ounsley's calculation had avoided the need to explore the details of actual bookings and cancellations, and had instead proceeded on a reasonable comparison between the pursuers' troubled years, on the one hand, and the true potential of the development, on the other.

Diminution in market value
[63] Turning to diminution in market value, Mr Ounsley's calculation started with the figure which a purchaser might reasonably be expected to pay for the facility, as a going concern, in the event of its being in perfect condition. In accordance with normal practice, this calculation started with a notional profit figure reflecting the apparent potential of the development in 2003 (the last year for which accounts were available), and went on to apply a multiplier before bringing out a total of £785,000. As against that, the market value of the subjects with defects was assessed by taking the same figure of £785,000, and deducting from it (a) the rectification cost of £221,000, and (b) further sums to represent re-launch costs and diminished business over the first two years. This brought out a total of £430,000, and the difference between the values with and without defects was accordingly £355,000. In Mr Ounsley's view, it was not realistic to attempt any more sophisticated calculation on the basis of the pursuers' actual profitability, or lack of it, at any relevant date.

Cost of rectification
[64] The figure of £221,000 for current rectification costs was spoken to by Mr O'Donnell in his evidence on Day 6 of the proof, and in the end neither party took issue with the accuracy of this figure.

Discussion and conclusion on damages
[65] In assessing the true nature and extent of the pursuers' losses in this case, I begin by noticing the very limited scope of the evidence tending to show how far their business has been adversely affected by the recurring problem of surface water on the pitches. According to Mr Atwal, records of all bookings and cancellations were in existence, but for some reason these were not produced in court. Had they been available for scrutiny, they might have confirmed the sort of trading pattern of which the Atwal brothers gave general evidence. They might have shown which pitches were worst affected, and with what frequency. They might have illustrated the booking patterns as between organised leagues and "bounce" games, and perhaps demonstrated why the ratio between these categories fluctuated from about 1:1 to around 3:1 in the pursuers' annual accounts. They might also have confirmed the existence of a link between the loss of particular customers and the cancellation of fixtures due to pitch problems. Alternatively, however, the missing records might have confirmed none of these things, and might have raised other possible explanations for the pursuers' gradually increasing turnover from 1996 to 2001, and/or for the marked decline which has occurred since then. How far was that decline due to Mr Atwal, the driving force behind this development, losing interest and concentrating on his restaurant business from around 2000? How far did it coincide with the emergence of greater local competition, including the major Powerleague complex in Dunfermline, in the period subsequent to Mr Ounsley's initial report in 2000? How far could it have been attributable to lack of maintenance of the pitches and drainage, and to episodes of increased flooding on that account? In the absence of the pursuers' business records, questions like these remain substantially unanswered, and it is therefore difficult for the court to make any confident estimate of the proportion of the claimed shortfall in profits which is truly attributable to the defective state of the pitches.

[66] Further complications arose from the evidence of the Atwal brothers. For example, according to Mr Amarjit Atwal on Day 8 of the proof, it was not all that long ago that the pursuers realised that the business was not doing well. Notwithstanding the loss of some customers whose bookings were affected by rain, the business was "running fairly well" and "going quite happily" until a gradual decline set in at a date which he could not pinpoint. At its peak, the business supported a total of 15 eight-team "divisions" or leagues over a 6-day week, although the number of leagues had now dropped to 5. These leagues would run without a break during a 3-4 month season, before becoming quieter over the holiday period. Even in 2005, when the pitches were in a bad state of disrepair, the pursuers were still left with their "most loyal teams" until, while the proof was in progress, their insurers forced the closure of the facility on safety grounds.

[67] Mr Atwal's evidence was less forthcoming on some of these issues. According to him, the business operated 6 days a week for 52 weeks of the year. At one time leagues had been an "almost daily" feature, but this was now reduced to a 3-day week. Although the pursuers' initial business projections had never come close to being realised, Mr Atwal purported to agree with Mr Ounsley's potential turnover of £300,000 per annum, and felt that his profits figure of £585,000 was "achievable". Mr Atwal also agreed that Mr Ounsley's selected hourly pitch charge of £30 was conservative, even though this would be higher than the charges levied by many competitors, including the Fife Institute just across the road. He further purported to agree that £60,000 would be a reasonable level of bar takings "...if there were more customers", despite the fact that the highest figure for bar takings in the pursuers' accounts since 1996 was only £21,537, with the level most often achieved being around £15,000/£16,000.

[68] As regards the percentage of days affected by rain, Mr Atwal's estimate (as quoted by Mr Ounsley) was 10-20%, a surprisingly wide range if, as he disclosed in court, the relevant records were in existence. However, when asked about this on Day 4 of the proof, he went rather further and expressed the belief that the percentage of affected days was "20-25%... 30%", thereby ending up with a range of figures in which the uppermost was three times greater than the lowest. Significantly, however, even if Mr Atwal's upper level of 30% were to be added back to the actual profit figures in the pursuers' accounts, these would still come nowhere near Mr Ounsley's projected potential profitability for the development. This suggests either that Mr Ounsley's figures are not realistic, or that by no means all of the apparent shortfall is attributable to problems with the pitches.

[69] A further difficulty, in my view, is that the assumption of an unbroken 52‑week trading year for the facility seems unrealistic. It makes no allowance for regular winter weather, for example snow and ice, or persistent heavy rain, which would tend to render the pitches unplayable. Equally, it makes no allowance for public holidays such as Christmas and New Year, for customers' annual holidays, or for intervals between leagues. The time required for annual maintenance and redecoration of the facility would also appear to have been ignored.

[70] In all the circumstances, I find myself unable to accept either that Mr Ounsley's projected potential profit figures for the period 1996-2003 are reasonably stated, or that the whole of the shortfall between these figures and the actual profit taken from the pursuers' annual accounts can, in the absence of the pursuers' business records, properly be attributed to the defective state of the pitches. The main criticisms which can in my view be levelled against Mr Ounsley's projections are (i) that they assume a 52-hour week; (ii) that they include extensive Saturday operation, contrary to the pursuers' long-term practice; and (iii) that they allow estimated bar takings at a level far in excess of what the pursuers ever actually managed to achieve. In these respects I do not consider that Mr Ounsley ended up comparing like with like. Arguably, his assumed hourly rental figure of £30 was also on the high side, but I am inclined to give him the benefit of the doubt on that score. If (a) the annual utilisation of the pitches were to be reduced to a more realistic figure of (say) 48 weeks, and at the same time (b) Saturday trading were to be excluded, and (c) estimated bar takings were to be stated at a level equivalent to the highest ratio which the pursuers' actual bar takings bore to pitch income in their annual accounts (approximately 22%), I calculate that Mr Ounsley's "EBDITA" potential profit for 2003 would thereby come down from £138,500 to only £95,225 (i.e. £30 x 121.5 hours x 48 weeks x 122% x 50%, less £11,500); that his projected net profit for the years 1996-2003 would, on the basis of the 2003 figure continuing to represent 19.514% of the total, amount to £487,000 rather than £709,000; and that the overall loss of profits would thus be reduced from £585,000 to around £363,000.

[71] Over and above that, however, I consider that a substantial discount would be appropriate to reflect the real uncertainty as to the true effect of the pitch problems on the pursuers' actual trading figures. On the evidence, I am prepared to accept that the major part of the shortfall should be attributed to the direct and indirect effects of the pitch defects, including the inevitable erosion of the pursuers' morale and commitment to the business, and on that basis it seems to me that a discount of (say) one-third would adequately cover the evidential uncertainty to which I have referred. On this approach, the loss of profits calculation would bring out a figure of £242,000.

[72] As previously noted, diminution in capital value is put forward as an alternative measure of the pursuers' loss. This approach concentrates on what a purchaser might realistically offer for the facility in its present state, and in that context particular features of the pursuers' past trading pattern would no longer be directly relevant. Accordingly, in my view, modifications (a) and (c) as set out in paragraph [70] above should continue to apply to the profit potential figures which underpin the calculation, but not modification (b) on account of the fact that an intending third party purchaser might well envisage operating 7 days per week in line with Mr Ounsley's advice. On that basis, the capital value of the facility without defects, less purchasers' costs at 5.5%, would on my calculations ([£30 x 153 hours x 48 weeks x 122% x 50%, less £11,500] x 6 x 94.5%) come to £696,000. As regards the value with defects, this would be £696,000 less (i) rectification costs of £221,000 and (ii) a re-launch allowance of 17%, bringing out a figure of £357,000 and thus an overall diminution of £339,000 in the value of the property on account of the defects.

[73] Although I have up to this point considered each of Mr Ounsley's principal calculations separately, it does not seem to me that either of them would by itself represent adequate compensation to the pursuers in the circumstances of this case. As the pursuers concede, a discounted award in name of loss of profits must be taken as covering the cost of such pitch replacement as would have been necessary even if no surface water problem had existed, and it is agreed in this action that that cost would be £160,000. But since it is also agreed that the cost of rectifying the defective pitches is rather greater, amounting to £221,000, the excess of £61,000 is a cost which the pursuers would not have had to meet but for the professional negligence of the defender, and I can see no reason why the pursuers should be expected to meet that excess cost out of their own pocket. In short, I consider that the true measure of the pursuers' loss comprises two elements, namely (i) the discounted loss of profits to which I have already referred, amounting to £242,000, and (ii) the current cost of rectifying the defects, under deduction of the £160,000 replacement cost which the pursuers would have required to meet in any event. These two elements together amount to £303,000, and in my opinion substantial justice would be achieved by an award of damages at that level.

[74] Counsel for the defender suggested that any award relative to the cost of rectification should be discounted on account of the pursuers' delay in bringing this action to a conclusion. However, I do not consider that any deduction from the figure of £61,000 would be appropriate in present circumstances. Apart from the fact that I am not inclined to blame either party for such delays as have occurred in this case, it seems to me that the relevant excess would probably have remained at a comparable level even if the two primary costs had been assessed at some earlier date. Moreover, in the context of Mr Ounsley's calculation of diminished market value, it is clear that only current costs would be considered by a notional third party purchaser, with the result that no discount would be justified there either. Failing such a discount, I understood counsel for the defender to accept that present-day figures could legitimately be considered in view of the pursuers' impecuniosity to date.

[75] On Mr Ounsley's alternative approach, the diminution in the capital value of the facility equates to (i) the current rectification cost of £221,000, taken together with (ii) fairly substantial re-launch costs and allowances. On the basis set out in paragraph [72] above, these elements amount, in aggregate, to £339,000. On a superficial view, this figure is not far removed from the sum of £303,000 to which I refer in paragraph [73], and may thus be thought to provide a cross-check on the validity of the latter. However, I am not persuaded that the two can properly be compared in this way, nor even that Mr Ounsley's calculation of diminished capital value provides a true measure of the pursuers' loss. For one thing, the current rectification cost of £221,000 would surely have to be off-set, at some point in the calculation, by the replacement cost of £160,000 which the pursuers would have had to meet anyway. And for another, it seems to me that, in present circumstances, the pursuers would almost certainly have incurred re-launch costs and diminished initial trading returns even if they had merely been replacing the pitches at the end of their natural life. In addition, it is clear that an award in name of diminished capital value alone would reflect only part of the pursuers' loss, leaving them entirely uncompensated for such loss of profits as they have sustained to date. These considerations merely serve to confirm and reinforce my conclusion that the true measure of the pursuers' loss, and the proper measure of an award of damages, must comprise the aggregate of (i) their discounted loss of profits to date, and (ii) the £61,000 excess cost of putting the pitches into proper repair.

[76] Accordingly, in my view, the pursuers' entitlement to damages in this case may fairly be assessed at the sum of £303,000. As I understand it, no interest will be payable on that figure to date because the "EBDITA" profits utilised by Mr Ounsley in his calculations took no account of depreciation, interest, tax or amortisation. In his submissions at the end of the proof, counsel for the pursuers accepted that this would be the correct approach, and in acknowledging this counsel for the defender did not press her contention that the loss of profit calculations should be re-done so as to incorporate the omitted items. Neither party sought to address me on the potential impact of taxation on any award in name of loss of profits.

Decision
[77] For all of the foregoing reasons, I now sustain the pursuers' first plea-in-law, repel the first three pleas-in-law for the defender, and find the pursuers entitled to damages in the sum of £303,000. Notwithstanding the position regarding interest to date, as recorded in paragraph [76] above, interest at 8% per year will, in the ordinary way, be payable on the above sum from the date of decree until payment.