| OUTER HOUSE, COURT OF SESSION [2008] CSOH 90 |
| A861/02 | OPINION OF LORD EMSLIE in the cause ANM GROUP LIMITED Pursuers; against GILCOMSTON NORTH LIMITED and OTHERS Defenders: ________________ |
Pursuers: Ellis, Q.C.; Beveridge & Kellas
Second Defenders: Howie, Q.C.; MacRoberts
Third Defenders: Lake; Simpson & Marwick
Fourth Defenders: Higgins; Brodies LLP
20 June 2008
Introduction
[1] The pursuers in this action own and operate an agricultural centre and auction mart known as the Thainstone Centre, near Inverurie, Aberdeenshire. The Centre comprises a complex of interconnected spaces serving a range of functions essential to the pursuers' business. The offices and sales ring concourse ("the concourse") occupies an area of about 55 x 60 metres; the lairage in which animals are penned is even larger, at about 110 x 75 metres; whereas the former general purposes hall was much smaller and, in terms of area, represented no more than about 5 per cent of the Centre as a whole. The general purposes hall was demolished in around 2003, and has never formed part of the pursuers' present claim.
[2] In these proceedings the pursuers claim substantial damages from the compearing defenders, all of whom played a part in the design and construction of the Centre in the late 1980s/early 1990s. As architects for the project the third defenders were responsible for inter alia the design of the Centre (including the specification of materials), for contract administration and co-ordination, and for the provision of advice and information to the pursuers. Apparently under subcontract to the third defenders, the fourth defenders were the consulting engineers on the project, undertaking both standard and additional duties in that connection. The second defenders were one of three different sets of contractors engaged to carry out construction works, including external roof and wall cladding, and undertook the latter through the first defenders as sub-contractors.
[3] The damages claimed by the pursuers relate to widespread and serious roofing failures over those parts of the Centre which remain in existence, namely (i) the concourse and (ii) the lairage. Articles 4-16 of the Condescendence contain detailed averments of the nature and cause of these failures, and Articles 18-20 spell out the breaches of duty alleged against the second, third and fourth defenders respectively. As disclosed on Record, the second defenders are sued in contract only; the fourth defenders primarily in delict; and the third defenders in both contract and delict.
[4] For their part, the respective defenders deny liability on the merits of the claim, and in addition maintain that any obligation to make reparation to the pursuers has been extinguished by operation of the five-year prescription under sections 6 and 11 of the Prescription and Limitation (Scotland) Act 1973, as amended. A preliminary proof before answer on the issue of prescription has now taken place in two distinct stages. Four days of evidence followed by initial submissions were heard towards the end of 2006 by the late Lord Dawson shortly before his untimely death, and the remainder of the proof has now been completed before me in February and March 2008 pursuant to arrangements sanctioned by the Inner House under Rule of Court 36.13.
The disputed issues
[5] In summary, the parties are in dispute on three main questions. First, having regard to the apparent cause, development and progression of the roofing problems affecting the Centre, were the requirements of section 11(1) of the 1973 Act satisfied so as to warrant the running of prescription from a date more than five years prior to the raising of the present action in 2002? Second, if so, was the running of prescription delayed, pursuant to section 11(3) of the Act, during any period when the pursuers were not aware, and could not with reasonable diligence have been aware, that loss, injury and damage caused by some relevant act, neglect or default had been sustained? And third, by reference to section 6(4) of the Act, was the running of prescription to any extent delayed or interrupted by error on the pursuers' part induced by the third defenders as their professional advisers after relevant roofing problems began to emerge in 1996?
[6] According to the defenders, the existence of material roofing problems known to the pursuers by late 1996/early 1997 was sufficient to start the running of prescription against them at that time. This was more than five years before the present action was raised against the second and third defenders in early April 2002, and against the fourth defenders on 25 July 2002. Although such problems manifested themselves in different areas at different dates, their nature and cause were substantially identical throughout. Having regard to the known emergence of such problems leading to progressive water penetration in the general purposes hall from September/October 1996 onwards, the pursuers were by April 1997 either aware, or could with reasonable diligence have been aware, of all matters relevant to the obligation to make reparation which they now asserted against each of the defenders. At no time were the pursuers under error on any of these matters, nor was any error on their part induced by any act or omission of the third defenders.
[7] In response, the pursuers' position was that although they were admittedly aware of roofing problems leading to water penetration in the general purposes hall in and after September/October 1996, they did not appreciate the existence of a potential cause of action against anyone until a much later date. Moreover, even with reasonable diligence on their part, it was not until dates between late 1997 and 1999 that they became aware of similar roofing problems in the concourse and lairage respectively. These dates were well within the period of five years immediately preceding the raising of this action. Significantly, the present claim was restricted to problems affecting the concourse and lairage alone, the general purposes hall having first been over-roofed and then demolished in 2003. In addition, to the extent that the pursuers' ignorance of the true situation during any period more than five years before the raising of the present action was attributable to error induced by the third defenders, no question of prescription could properly arise in a question with them.
Preliminary legal points
[8] It is convenient at this stage to deal with a number of preliminary legal points that were raised at the hearing before me. These were as follows:-
(a) Onus of proof:
In broad terms the parties were agreed that the onus of proving prima facie prescription under section 11(1) of the Act - a phrase borrowed from the speech of Lord Millett in BP Exploration Operating Co Ltd v Chevron Shipping Co 2002 S.C. (H.L.) 19, at para [97] - lay upon those (here the defenders) by whom pleas of prescription were advanced. Conversely, on any issue regarding lack of awareness for the purposes of section 11(3), or regarding error for the purposes of section 6(4), the onus of proof lay on the pursuers. In Sinclair v MacDougall Estates Limited 1994 S.L.T. 76, the first of these issues was resolved by concession, but in Strathclyde Regional Council v WA Fairhurst & Partners 1997 S.L.T. 658 Lord Abernethy (at pp.660-3) specifically held that the defenders, as the party positively asserting prescription under sections 6 and 11(1) of the Act, must accept the onus of proving facts and circumstances sufficient to justify their plea. The pursuers' onus under section 11(3) was more recently affirmed by Lord Macfadyen in Britannia Building Society v Clarke 2001 S.L.T. 1355.
In my view the parties' agreement on these related issues was well founded, and in particular I accept that the decision in Strathclyde Regional Council settled any uncertainty as to which party must bear the onus of proof in connection with prima facie prescription for the purposes of section 11(1) of the Act.
In that latter context, however, senior counsel on behalf of all of the defenders argued that the pursuers' pleadings in this case should be held to relieve the defenders of any further onus of proof. I do not doubt that the concurrence of damnum and iniuria for the purposes of section 11(1) may be made a matter of judicial admission so as to render further proof unnecessary. Indeed such a possibility was envisaged by Lord Fraser in Pirelli General Cable Works Limited v Oscar Faber & Partners 1983 2 A.C. 1. In the present case, however, I am unable to identify any such admission, whether express or implied. Senior counsel's argument was to the effect that since almost the whole of Condescendence 22 comprised averments referable to sections 11(3) and 6(4), and since such matters were not pled on an esto basis, this must be taken to indicate tacit acceptance by the pursuers that their claims had prima facie prescribed under section 11(1).
In my opinion, that argument must be rejected as unsound. Condescendence 22 contains no judicial admission relative to the application of section 11(1). On the contrary, it includes (at p.49A) a general denial of the defenders' averments on prescription, followed inter alia by the averment:
"The pursuers did not suffer problems with the relevant roofs until August 1997".
Similar averments appear elsewhere on Record, notably in Condescendence 4 at p.19C-D, and I do not see how these important features of the pursuers' pleadings can, for present purposes, be ignored or treated as if they had no weight. It would, I think, be strange if greater significance were to be accorded to the absence of the word "esto" as an introduction to the pursuers' averments on sections 11(3) and 6(4) than to the absence of any judicial admission referable to section 11(1), or to the presence of an express denial and positive assertions in that regard.
(b) Effect of the defenders having led no evidence:
Senior counsel for the pursuers contended that, since the defenders had led no evidence at the proof (although clearly having potentially relevant evidence at their disposal), they could have no complaint if the most favourable inferences were drawn in the pursuers' favour:- Ross v Associated Portland Cement Manufacturers Limited 1964 1 WLR 768, esp. per Lord Reid at 775. As illustrated by the decision of the Inner House in Berry v Berry 1991 S.L.T. 42, this was a principle of general application, and indeed in O'Donnell v Murdoch McKenzie & Co. Limited 1967 S.C. (H.L.) 63 the House of Lords had apparently gone further in suggesting that, in such circumstances, the court should (irrespective of any question of onus) draw inferences favourable to the party by whom evidence had been led. In response, counsel for the defenders urged caution in this area, pointing out (a) that the principle bore to relate only to evidential inferences and not, for example, to general questions of credibility or reliability; (b) that in O'Donnell their Lordships had borne to follow, rather than disapprove or modify, the test in Ross; and (c) that on no view could the court be under any obligation to draw inferences where none were justified.
In my judgment the proper approach where one party leads no evidence must be taken to be that stated by Lord Reid in Ross, namely that the party concerned cannot complain if the most favourable inferences are drawn in his opponent's favour. I am unable to read the speeches in O'Donnell as imposing any obligation on the court to draw such inferences, or as seeking to depart from what was said in Ross, and consider that in any given case the court must remain free to decide whether inferential findings should or should not be made.
(c) Approach to evidence where witnesses not seen or heard:
Parties were in agreement that a court was not well placed to judge the credibility or reliability of witnesses who had given evidence elsewhere. In the present case, where the late Lord Dawson had seen and heard the witnesses in 2006, I was perhaps in a position analogous to that of an appellate court where transcribed evidence was at large for consideration. Intrinsic contradictions or improbabilities could no doubt be taken into account, as could obvious discrepancies between oral and documentary evidence. In addition, account might legitimately be taken of the late Lord Dawson's notes, provided that parties had an opportunity to comment on salient points. Beyond that, there would be little or no scope for assessments of credibility or reliability, and evidence might simply require to be taken at face value.
In approaching this case I am satisfied, in accordance with the agreement of parties, that my entitlement to judge the credibility and reliability of witnesses is limited along the lines suggested.
The statutory framework
[9] So far as relevant for present purposes the 1973 Act, as amended, provides inter alia as follows:
"6 (1) If, after the appropriate date, an obligation to which this section applies has subsisted for a continuous period of five years -
(a) without any relevant claim having been made in relation to the
obligation, ...
then as from the expiration of that period the obligation shall be extinguished. ...
(2) Schedule 1 to this Act shall have effect for defining the obligations to which this section applies.
(3) In subsection (1) above the reference to the appropriate date, ... in relation to an obligation (of a kind not specified in Schedule 2) is a reference to the date when the obligation became enforceable.
(4) In the computation of a prescriptive period in relation to any obligation for the purposes of this section -
(a) any period during which by reason of -
...
(ii) error induced by words or conduct of the debtor or any person
acting on his behalf,
the creditor was induced to refrain from making a relevant claim in relation to the obligation ...
shall not be reckoned as, or as part of, the prescriptive period:
Provided that any period such as is mentioned in paragraph (a) of this subsection shall not include any time occurring after the creditor could with reasonable diligence have discovered the ... error ... referred to in that paragraph ...
11 (1) Subject to subsections (2) and (3) below, any obligation (whether arising from any enactment, or from any rule of law or from, or by reason of any breach of, a contract or promise) to make reparation for loss, injury or damage caused by an act, neglect or default shall be regarded for the purposes of section 6 of this Act as having become enforceable on the date when the loss, injury or damage occurred.
(2) Where as a result of a continuing act, neglect or default loss, injury or damage has occurred before the cessation of the act, neglect or default the loss, injury or damage shall be deemed for the purposes of subsection (1) above to have occurred on the date when the act, neglect or default ceased.
(3) In relation to a case where on the date referred to in subsection (1) above (or, as the case may be, that subsection as modified by subsection (2) above) the creditor was not aware, and could not with reasonable diligence have been aware, that loss, injury or damage caused as aforesaid had occurred, the said subsection (1) shall have effect as if for the reference therein to that date there were substituted a reference to the date when the creditor first became, or could with reasonable diligence have become, so aware."
With reference to section 6(2) above, Schedule 1 to the 1973 Act includes inter alia the following obligations:-
"(d) ... any obligation arising from liability (whether arising from any
enactment or from any rule of law) to make reparation;
... and
(g) ... any obligation arising from, or by reason of any breach of, a
contract or promise, not being an obligation falling within any other provision of this paragraph."
Principal issues of law
Overview:
[10] The most significant legal issues discussed at the hearing on evidence before me concerned the proper construction of the phrases "... loss, injury or damage caused by an act, neglect or default" and "... loss, injury or damage caused as aforesaid" in section 11, subsections (1) and (3) of the Act respectively. What were the factors which must concur, and/or be known, in order to start the running of the five-year prescription? What kind of loss or damage, in nature, degree or location, would qualify? Could any initial incident of loss, however minor, trigger prescription in relation to later losses which might be much greater or different in kind, or which might flow from some different cause? Similarly, what was the proper scope of the references to an act, neglect or default? In particular, did these words import legal actionability? And, if so, was the focus of the statute directed towards the particular breach or breaches of duty on which a claim was based, or might any relevant breach of duty suffice whether pled or not? These and other related questions were the subject of detailed analysis and argument before me, with extensive citation of authority, and it will be convenient to deal with them at this stage before turning to consider the evidence which was led at the preliminary proof.
Extent of agreement:
[11] Fortunately there was a measure of agreement among the parties in this connection. In particular, they were at one in submitting (i) that, although certain contextual differences might be identified, the critical phrases appearing in two closely-related subsections ought prima facie to bear the same meaning; and (ii) that on any fair and reasonable construction there had to be scope for successive discrete incidents of loss or damage flowing from separate and distinct defaults to be treated independently for prescription purposes. Claimants would suffer unfair prejudice if the running of prescription relative to the concurrence of any initial incident of loss or damage and its correlative default were held to extinguish all subsequent causes of action, even though these might be unrelated and/or have emerged after the prescriptive period expired.
[12] As I understood it, these submissions proceeded on a mutual acceptance of several decided cases commencing with Sinclair, supra, and ending with Musselburgh & Fisherrow Co-operative Society Limited v Mowlem (Scotland) Limited 2004 S.C.L.R. 412. In Sinclair, there had been four separate breaches of the defenders' contractual obligations relative to the design and construction of a composite building. Damage to different parts of the building had occurred at different dates many years apart. In repelling the defenders' plea of prescription, the Lord Ordinary held that the particular default and (1988) damage on which the pursuer now founded were distinct and different from certain other defaults and (1972 and 1977) damage on which the plea was based. As he put it (at p.82K-L):
"It seems to me that it would work considerable injustice for pursuers if a minor failure to design and construct on the part of defenders, which had come to light earlier, were held to be sufficient to constitute injuria in relation to a major and different failure to design and construct which was discovered much later.
Even if I am wrong in my approach to injuria, the defenders still have to satisfy me that the damage which emerged in 1988 - the damnum - was the same as or related to that which emerged either in 1972 or 1977. ... The damage which was discovered in 1988 ..., on the face of it, was quite different from anything seen in 1972 or 1977. Nor, on the evidence, have the defenders satisfied me that there was any connection in fact between the damage discovered in 1988 with what appeared in the earlier years."
[13] After Sinclair was followed in Strathclyde Regional Council v WA Fairhurst & Partners, supra, a similar approach was affirmed by an Extra Division in Cole v Lonie 2001 S.C. 610. There the court held that awareness of the defenders' breach of duty in connection with the installation of a kitchen ventilation system, discovered in 1990, could not start the running of prescription relative to later problems allegedly due to defective flat separation works, including fire- and sound-proofing, within the same building. As the Lord Ordinary had held in Sinclair and on a proper construction of the statutory wording, different defaults and their consequences might legitimately call for separate prescriptive periods. However, the decision in Cole turned on what was described as "a very short point indeed", the main issue being whether a particular clause of the original missives between the parties fell to be construed as imposing a single composite obligation, or alternatively separate obligations, relative to the works in question. As a result, the court did not require to examine any more general criteria by which the necessary degree of distinction or difference in losses and defaults might be identified.
[14] More recently, in the Musselburgh case, Lord Eassie in the Outer House followed the same general line, holding that the emergence of defects in parts of a municipal swimming pool in 1993 did not start the running of prescription relative to a different defect elsewhere in the structure which was not discovered until six years later. Distinguishing the case of Greater Glasgow Health Board v Baxter Clark & Paul 1990 S.C. 237 (to which reference is made below), the Lord Ordinary rejected the defenders' argument that for the purposes of section 11(1) the emergence of any alleged defect and correlative default would be sufficient to trigger the running of prescription relative to all. In paragraphs [50] and [51] of his opinion (at pp.429-430), he explained matters in inter alia this way:
"[50] ... in my judgment, although a contractual relationship will often contain general provisions such as a general duty of care or a general duty to construct in a workmanlike manner, for the purposes of the running of the five-year prescription it is necessary to identify the particular respect in which the general duty is breached and which leads to the causing of the particular defect in question. In Sinclair ... the Lord Ordinary ... effectively rejected the notion that in a contract such as a building contract breach of a general duty of workmanlike construction by failure A causing defect A should start the time running as respects failure B causing defect B."
[15] After referring to the Inner House decision in Cole, the Lord Ordinary went on:
"Although on the facts in Sinclair the early defects were in fact relatively minor by comparison with the later emerging defect, it does not appear to me that it should be necessary that the earlier defect be minor or indeed that relative magnitude plays a role. Accordingly, in my opinion, in a contract such as the building contract where there may be a multiplicity of defects each caused by a different specific failure in a general duty such as a duty of care or workmanlike construction the proper approach for the purposes of the quinquennial prescription is to examine each distinct defect and its correlative failure in construction or design separately. In so saying I recognise that in practice there may be difficulty in determining whether defects, and the correlative failure, are truly distinct and discrete as opposed to being a development or a further emerging example of an existing known defect and its correlative failing. As is concluded by Johnston in his work on Prescription and Limitation, paragraph 2.26, a pragmatic approach may be indicated.
[51] Adopting that approach it ... appears to me that defect (iii) is discrete and distinct and is not simply a development, or a further example, of either defect (i) or (ii). The latter are of course defects in the water tightness of the interface between the perimeter channel and the adjacent floor and outlet pipes respectively whereas the former is a defect in the structure of the tank. Not only are they thus different in location, the defects are also different respecting the nature of the deficiency. The mechanism of failure in the case of defect (iii), namely failure of the waterproof render by reason of the omission of adequate expansion joints in the structures, is quite different from the mechanisms involved in the other two defects. The defects also differ in their consequences ... In my view the seepage defect is distinct and separate from either of the other two defects and must therefore be considered independently."
[16] According to counsel, these were the principal Scottish cases in which the court had had to consider the problem of separate and distinct iniuriae giving rise at different dates to defects or damage in different parts of a composite structure. In the same general vein was the decision of the Inner House in GA Estates Limited v Caviapen Trustees Limited 1993 S.L.T. 1051, where an issue arising for determination was whether a claim on one contractual warranty counted, for the purposes of interrupting prescription, as a "relevant claim" on another. The Extra Division held that it did not, treating the warranties as separate and distinct although contained within the same contract, and therefore as potentially prescribing in different circumstances and at different times.
[17] On the foregoing basis I understood the parties to be in general agreement that in cases where multiple distinct defects and correlative defaults affecting a composite structure came to light at different times, there had to be scope for construing section 11 in such a way as to permit independent treatment, where appropriate, for prescription purposes. It was therefore important to recognise that judicial observations in certain other decided cases were made against a different factual background and with different issues in mind. At first sight, for example, Lord Clyde in the Greater Glasgow Health Board case, and subsequently in Kirk Care Housing Association v Crerar & Partners (28 July 1995, unreported), and the First Division in Glasper v Rodger 1996 S.L.T. 44, might appear to have affirmed a different approach, namely that for the purposes of section 11(3) a party need only be aware that some loss or damage had occurred, and that this was attributable to a breach of duty of some kind. Whatever the true nature and extent of such loss or damage, the precise character of such breach of duty, or the identity of the party or parties responsible, the prescriptive period would then begin to run.
[18] In the Greater Glasgow Health Board case, where the defenders were a firm of architects, Lord Clyde (at p.252) said:
"... At best for the pursuers (subsection 11(3)) refers to awareness that the loss was caused by some negligence ... I am not persuaded that section 11(3) is still available with a view to deferring the start of the prescription period when the creditor knows of the loss, knows that it was caused by negligence, but does not know the identity of the person on whom the obligation lies. The pursuers' averments indicate an awareness not only of the loss, but of an awareness of fault causing it insofar as they believed that the fault was that of the contractors alone. That they believed that their loss was due to a construction fault rather than a design fault does not, in my view, prevent the five year period from starting to run against them in relation to the defenders.
... Looking to the terms of section 11(1) and section 11(3) the 'loss, injury or damage caused as aforesaid', of which the later subsection requires an awareness, is a loss, injury or damage 'caused by an act, neglect or default' not by the particular act, neglect or default of a particular obligant."
[19] Similarly, in delivering the opinion of the court in Glasper, the Lord President (Hope) at p.47F-I said:
"In our opinion the lack of awareness which requires to be established for the purposes of section 11(3) of the 1973 Act is a lack of awareness that a loss has occurred caused by an act, neglect or default which gives rise to an obligation to make reparation for it. We agree with Lord Clyde's observation in Greater Glasgow Health Board ... at p.40D that the subsection looks for an awareness, not only of the fact of loss having occurred, but of the fact that it is a loss caused by negligence. In that case it was clear from about the time of practical completion that the hospital at Yorkhill was suffering from various defects. It was averred that widespread and progressive cracking and detachment of the site fixed mosaic was observed and that there were defects in the windows rendering them difficult and impossible to open and close, resulting in water penetration, extensive air infiltration and timber decay. The pursuers' averments indicated an awareness by them not only of loss but also of fault causing it. They averred that they believed that their loss was due to a construction fault rather than a design fault but, as Lord Clyde said ..., this did not prevent the five year period from starting to run against them in relation to the defenders, who were a firm of architects."
[20] Again, in the Kirk Care Housing case, Lord Clyde after hearing a full argument adhered to his previous views on the proper construction of section 11(3), although (at p.11) noting the difficulty of reaching any construction which did not give rise to some potential problem.
[21] According to counsel it was the context of these various observations which mattered. In Greater Glasgow Health Board, Lord Clyde was primarily concerned with an issue under section 11 (3) regarding awareness of the identity of the party responsible, and in the absence of appropriate averments the possibility of multiple causes of action was not considered. The main issue in Glasper was whether, and if so at what date, the pursuers were aware that they had suffered any loss at all. And in the Kirk Care Housing case, where the correctness of decisions from Dunfermline District Council v Blyth & Blyth Associates 1985 S.L.T. 345 onwards was under direct challenge, the principal question for determination was whether a pursuer need be aware of some actionable default (i.e. negligence) before prescription would begin to run. Significantly, as Lord Eassie recognised in Musselburgh case, none of these decisions was concerned with the issue of whether separate prescriptive periods might apply to different and discrete defects (and correlative defaults) in a composite structure. The observations in these cases must therefore be read and understood in their own particular context although, in appropriate circumstances, they could and should be read alongside Sinclair, Cole and Musselburgh and modified accordingly.
[22] On a straightforward approach to the statutory wording of section 11, it seems to me that the primary focus of subsection (1) is on the occurrence and timing of relevant "loss, injury or damage", with prescription prima facie beginning to run where that concurs with a causative "act, neglect or default" of any kind. In my view the same may be said of subsection (2), which provides a deemed date for the occurrence of loss, injury and damage in certain circumstances. Subsection (3) dealing with lack of awareness is perhaps framed with a slightly different emphasis, but in essence none of these three subsections bears to direct attention towards specific individual grounds of complaint, or even to the identity of those in default. To that extent I respectfully accept and endorse the substance of the decisions in Greater Glasgow Health Board, Glasper and Kirk Care Housing. I am however also persuaded, in line with parties' submissions, that on a fair and proper construction section 11 must throughout be held to admit the possibility of multiple independent prescriptive periods where successive incidents of loss or damage affecting a composite structure are different and discrete, and especially where these flow from separate and distinct defaults. Any other approach would, I think, be liable to cause unfair prejudice to pursuers, and could in particular result in the extinction of legitimate causes of action at a date before they ever came into existence. As the House of Lords pointed out in Watson v Fram Reinforced Concrete Co (Scotland) Limited and Another 1960 S.C. (H.L.) 92, statutory prescription and limitation provisions should if possible be construed so as to avoid such a result, and in my view there is nothing in the wording of any part of section 11 which would prevent that course from being taken here. Indeed Sinclair and Musselburgh in the Outer House, and Cole in the Inner House, are decisions which confirm and illustrate the legitimacy of construing subsections (1) and (3) in this way, and I see no reason why the approach taken in Greater Glasgow Health Board, Glasper and Kirk Care Housing should not now be open to modification, where necessary, along the same lines.
[23] Furthermore, as it seems to me, there is nothing in other decided cases to which I was referred such as Dunlop v McGowans 1980 S.C. (H.L.) 73, Murphy v Brentwood District Council 1991 A.C. 398, Stevenson v Pontifex and Wood 1887 15 R. 125 and Aberdeen Development Co v Mackie, Ramsay and Taylor 1977 S.L.T. 177, which would oblige me to reach any different conclusion. Dunlop was an action of damages arising out of a single failure by solicitors to serve a notice to quit, and the decision was merely to the effect that a defender's obligation to make reparation in such circumstances was indivisible, arising on the initial concurrence of damnum and iniuria, and that for any particular iniuria prescription would begin to run as soon as it began to be productive of loss. Implicit in that decision was the recognition (i) that, for different and distinct iniuriae there might be separate prescriptive periods running from the date on which each gave rise to loss or damage, but (ii) that once relevant loss and damage had flowed from a given iniuria, so as to start the running of prescription, there could be no question of further emerging loss and damage being held to confer a new and separate cause of action. In Murphy, the House of Lords were concerned with the question whether defects coming to light in parts of a complex building fell to be regarded as pure economic loss, for which no cause of action in tort might be available, or as physical damage to property. In favouring the former analysis, their Lordships dismissed the "complex structure" theory whereby, it was suggested, each element of a structure might be regarded as distinct and thereby susceptible to "damage" originating elsewhere. Although there was some discussion of when a cause of action might accrue, that was again in a context where the possibility of different prescriptive periods for different losses and correlative breaches of duty was not in issue. Similarly, Stevenson and Aberdeen Development Co were cases illustrating the settled rule of practice whereby all losses flowing from the same iniuria or default must be sued for in the one action. It was again implicit in these decisions that separate iniuriae or defaults giving rise to different losses might legitimately be the subject-matter of more than one action.
Disputed issues:
[24] Against that (largely agreed) background, there were three principal areas of dispute between the parties. In the first place, they were at odds with regard to the criteria to be applied in determining whether losses and correlative defaults affecting a composite structure should be regarded as sufficiently distinct and different from one another to merit separate treatment for the purposes of prescription. Secondly, they were in dispute as to how far it might be open to pursuers to aver themselves out of the five-year prescription, either by omitting reference to particular losses and/or defaults which might be thought problematic in that context, or alternatively by alleging additional losses and/or defaults with the potential to create relevant distinctions or differences. And thirdly, they differed on the question whether, for the purposes of section 11(3), any relevant awareness must extend to the legal actionability of an act, neglect or default. These disputed issues are considered in turn below.
(a) Criteria:
[25] As regards criteria, the pursuers' primary position was that the only thing which counted was the particular losses and (more importantly, in counsel's submission) the particular alleged defaults on which the claim under consideration was founded. On this approach each combination of loss and correlative default had to be examined individually to see if it was, or was not, the same as any other. To the extent that any difference was discernible, a separate prescriptive period was warranted. For present purposes, therefore, even if material damage to the roof of the general purposes hall had emerged, and was known about, more than five years before the raising of the present action, and even if that damage was known to have flowed from actionable default, all of the pursuers' rights were preserved in relation to (a) the constituents (damnum and iniuria) of any cause of action which did not specifically relate to the general purposes hall, and (b) the consequences of any alleged breach of duty of which they (the pursuers) justifiably remained unaware until a date less than five years before this action was commenced. Admittedly this approach involved a potentially minute and unattractive fragmentation of the pursuers' claims or rights of action, but in counsel's submission account had to be taken of every apparent distinction or difference, however minor, if the pursuers' legitimate interests were to be preserved.
[26] As against that, the position of the defenders was that the best guide to the appropriate criteria was to be found in the opinion of Lord Eassie in Musselburgh at paragraphs [50] and [51]. The question was thus whether successive defects and correlative defaults fell to be regarded as truly distinct and discrete, as opposed to comprising related developments or further emerging examples of prior defects and defaults on which prescription had already run. In the determination of that question the nature, location, and scale of particular defects or incidents of damage would be relevant considerations, and the same might be said of the nature of the default or breach of duty by which such defects were caused. According to counsel, however, the pursuers' approach went far beyond that, involving fragmentation of both losses and defaults to an unacceptable degree, and it was not appropriate to descend to that level of detail. Significantly, as was pointed out in the Greater Glasgow Health Board case, and also in Glasper and Kirk Care Housing, the awareness necessary to start prescription running under section 11(3) did not extend to precise grounds of fault, or even to the identity of the responsible party or parties. Accordingly knowledge or belief that particular losses were, in whole or in part, attributable to construction faults was held sufficient to start the running of prescription against all responsible parties whether in the field of construction, design, inspection, manufacture or supply of materials. Pursuers would then have five years within which to identify the correct defenders to sue and the precise grounds on which to do so. If that was the correct approach, even as qualified, in appropriate circumstances, along the lines affirmed in Sinclair, Cole and Musselburgh, then there could be no scope for the degree of fragmentation on which the pursuers' argument depended.
[27] In my opinion the defenders' contentions on this issue are in principle more persuasive, and sit more easily with the various authorities to which reference has been made. It is one thing for the legislation to afford relief to pursuers where emerging loss or damage is truly distinct and discrete from what has gone before, especially if the correlative default is also new and different, but in my view quite another to hold that any discernible difference, however minor, must necessarily attract separate and independent treatment for prescription purposes. Accordingly, as it seems to me, losses and correlative defaults which are substantially the same as others on which prescription has already run, or may reasonably be seen as related developments or further emerging examples of the latter, will not justify separate and independent treatment under any part of section 11 of the Act. Thus the exacerbation, progression or extension of known problems (as for example where, over time, substantially the same form of defect or damage, caused in substantially the same way, sequentially affects different parts of a composite structure) will not ordinarily qualify for relief in this context, nor will the addition of some further individual ground of complaint to the specification of concurrent causative defaults on which prescription has already operated. Since (as previously noted) the primary focus of the three subsections appears to be on the occurrence of relevant loss, injury or damage, or on a party's awareness of it, I am inclined to think that such relief will most often come into play where truly distinct and discrete losses are in issue. The nature of any causative default may serve as a relevant and material consideration in determining whether successive losses are, or are not, truly distinct and discrete, but where such losses are substantially the same it is in my view hard to envisage circumstances in which the later assertion of some new concurrent ground of complaint could properly attract relief on its own.
(b) Pleadings:
[28] On the related question as to how far a pursuer's pleadings may be thought relevant or determinative in this field I am not prepared to hold, as a matter of principle, that prescription can be elided by the manner in which a given case is pled. Plainly the critical issue for determination is whether or not a particular claim or, more accurately, the correlative obligation to make reparation has prescribed, but in my judgment omitting reference to relevant losses and causative defaults cannot effectively avoid whatever prescription may flow from their existence. As was conceded in argument, it must always be open to the court to consider relevant facts and circumstances whether or not a pursuer founds on them as part of his claim. In the present case, the fact that the pursuers make no claim against the defenders in relation to the general purposes hall, where material roofing problems were known to them by September/October 1996 and thus more than five years prior to the raising of this action, cannot in my opinion prevent the court from considering whether, in fact and in law, such problems should be held to affect the running of prescription vis-à-vis a claim focused only on the roofing of the concourse and lairage areas.
[29] If on analysis the problems affecting these latter areas fall to be regarded as substantially the same as, or closely connected with, those which earlier affected the general purposes hall, or as merely related developments or further emerging examples of the latter, then in my view the pursuers' elective restriction of their claim cannot constitute an effective answer to the defenders' plea of prescription. Similarly, I do not consider that the pleading of further individual grounds of complaint, (even criticisms which could not have related to the general purposes hall such as, for example, the omission of movement joints), should avail the pursuers if, on the evidence, other effective concurrent causes of roofing failure had from the start applied across the entire Centre. In other words if, by the time the present action was raised, prescription had already run on relevant defects concurring with relevant defaults vis-à-vis the roofing of the Centre as a whole, I do not see how the operation of that prescription could be reversed by tabling some additional ground of complaint in respect of the two areas of roof to which this action relates. As illustrated by the decisions in Greater Glasgow Health Board, Glasper and Kirk Care Housing, prescription founded on attribution of a given loss to construction defects is not elided where architects are later sued in connection with design faults, that is, where further specific grounds of complaint and/or other defenders are later identified. The "act, neglect or default" falling to be considered under the various subsections is thus prima facie of a broad and general nature, and does not involve scrutiny of individual detailed grounds of complaint pled, or pleadable, against particular parties. However, as the cases of Sinclair, Cole and Musselburgh confirm, the nature of correlative defaults may nevertheless relevantly assist in identifying losses sufficiently distinct and discrete to merit separate treatment for prescription purposes. More importantly, perhaps, it is only relevant prior losses and their correlative defaults that can properly be relied on in support of a plea of prescription; prior losses and defaults which are distinct, discrete and unrelated will fall to be left out of account.
(c) Actionability:
[30] In the course of the debate counsel for the defenders sought to persuade me that, in one particular respect, leading authorities in this area were wrongly decided and should not be followed. In particular, it was said, the decisions in Dunfermline District Council, Greater Glasgow Health Board, Glasper and Kirk Care Housing were wrong in holding (albeit obiter) that for the purposes of section 11(3) the necessary awareness had to include awareness that the relevant act, neglect or default was actionable in the sense of comprising negligence of some kind, or of "... giving rise to an obligation to make reparation". In using the latter phraseology, it was said, the Inner House in Glasper had unwarrantably inserted a qualification for which Parliament had not provided, and had thus strayed beyond the proper boundaries of statutory interpretation. In Inco Europe Limited v First Choice Distributors Limited 2000 I.L.L.R. 467, the House of Lords had discussed the circumstances in which it might be open to a court to read extra words into a statute, and had limited such an exercise to situations where the parliamentary draughtsman had patently fallen into error and the inserted words could be seen to reflect the true intention of the legislature:- see the speech of Lord Nicholls of Birkenhead at p.471. No such situation arose here, it was said, and the words "act, neglect or default" must simply be construed according to their ordinary natural meaning and without the inappropriate gloss which successive decisions including Glasper had sought to introduce. In particular the word "act" carried no connotation of negligence at all, nor did "neglect" or "default" clearly import actionability.
[31] In my opinion the defenders' argument here is unsound and cannot be sustained. In the first place I am not convinced that, where a higher court requires to construe a primary statutory provision falling to be applied in a given case, that exercise of construction should be characterised as obiter and non-binding merely because the ultimate decision bears to turn on only one aspect of the whole. The better view, as it seems to me, is that if construction of the entire provision is a necessary precursor to any decision relative to one or more of its component parts, then that construction must be held to form part of the ratio of the decision. On this basis I regard the decision of the Inner House in Glasper as binding on me in any context to which it properly relates.
[32] Even if I were wrong about that and the "actionability" qualification fell to be treated as obiter in some or all of the decided cases, opinions emanating from distinguished judges such as Lord Clyde, and from their Lordships of the First Division in Glasper, would still be highly persuasive and deserving of the greatest weight and respect. In accordance with these opinions which were, incidentally, followed by the Extra Division in Cole, a construction of the statutory phraseology importing actionability has now been settled law in Scotland for nearly a quarter of a century, and it would require strong and convincing reasons to persuade me to hold otherwise in this case. In my judgment no sufficient justification has been put forward in that regard, and in particular none sufficient to convince me that Lord Clyde's reaffirmation of his previous views in Kirk Care Housing, after hearing full argument along very much the same lines as the defenders have presented here, was ill-founded and should not be followed. In reaching this conclusion it seems to me that, in the cases in question, the court was legitimately engaged in a search for the true meaning of a phrase of uncertain scope, and of words potentially capable of bearing more than one interpretation. Attempting to qualify statutory language which was already clear and unambiguous would in my view have been a different matter altogether. On that analysis, as it seems to me, the court was not truly inserting additional words along the lines discussed in Inco, and the defenders' argument is thus misconceived.
[33] Interestingly, in my opinion, the statutory phrase "act, neglect or default" was not new in 1973 and had a long-established pedigree going back some eighty years in the field of limitation. By way of example, section 6(1) of the Law Reform (Limitation of Actions, etc.) Act 1954 used the same phrase in a context which was authoritatively construed as denoting actionability - see the speeches of Lords Keith of Avonholm and Denning in Watson at pp.111 and 115 respectively - and in the present context it is perhaps also noteworthy that Parliament, when enacting amending legislation in 1984, should have chosen to retain the phraseology of section 11 relative to the five-year prescription while at the same time, in section 17 of the same Act dealing with limitation, substituting the new and much blander words "act or omission". Furthermore, since the whole context of section 11 is to do with obligations to make reparation, whether by reason of delict or breach of contract, it would I think be strange if the phrase "loss, injury or damage caused by an act, neglect or default" did not there encompass all of the elements which would be necessary to furnish pursuers with a cause of action. To construe the word "act", as the defenders sought to do, as denoting no more than human intervention of some kind would in my view fail to reflect the proper statutory context in which that word appears.
Prima facie prescription under section 11(1)
General summary:
[34] On the evidence led at the preliminary proof, I am satisfied that the defenders have successfully discharged the onus of establishing prima facie prescription against the pursuers under section 11(1) of the 1973 Act, as amended. In my view this conclusion is warranted by a combination of (i) evidence that every act, neglect or default alleged by the pursuers against all or any of the defenders occurred prior to the date when the final certificate on the original contract for construction of the Thainstone Centre was issued in 1993; and (ii) evidence that by December 1996 at the latest the pursuers had sustained consequent loss and damage referable, not only to the roofing of the Centre as a whole (if appropriately treated as a unum quid), but also (if appropriately treated as severable) to each of the three main segments individually. There was thus evidence of the necessary concurrence of iniuria and damnum by what I shall call "the critical dates", that is, dates five years before the present action was raised in April and July 2002.
Iniuria:
[35] As regards iniuria, the pursuers do not offer to prove any act, neglect or default (in contract or delict) against any of the defenders occurring later than 1993, far less any such act, neglect or default occurring within the five years before the action was raised. Indeed it is in my view self-evident that any deficiencies in construction, design, inspection, manufacture or supply of materials must de facto be referable to dates before construction of the Centre was completed. As a general rule, however, the defaults of contractors and others attract no legal liability until at least the date of practical completion of the works, and more plausibly until the date on which a final certificate is issued: see Kaye Limited v Hosier & Dickinson Limited 1972 1 W.L.R. 146, per Lord Diplock at 165; Strathclyde Regional Council v Border Engineering Limited 1998 S.L.T. 175. Where the contractor's obligation is to complete stipulated works within the contract period, and the works are still in progress, it would be unrealistic and unfair to treat every disconformity, however short-lived, as a breach of contract potentially sounding in damages. For present purposes, therefore, I consider that the emergence of iniuria must be held to coincide with the issue of the final certificate by the third defenders in 1993.
Damnum:
[36] As regards damnum, the key evidence came from Mr Graham Nye, a well-qualified expert who inspected the roofing of the Centre on behalf of the sheet manufacturers in 1992 and 1996. By the time of his first visit in 1992, the use of fibre cement roof sheeting was becoming known within the industry as a widespread and potentially serious problem, with many roofs exhibiting premature cracking and progressive failure. That first visit involved an entirely surreptitious examination from ground level, of which the pursuers were not informed, whereas the next visit in December 1996 included a disclosed high-level inspection of the roof over the general purposes hall where water penetration was already a problem. On both occasions, as recorded in contemporaneous memoranda the terms of which were not communicated to the pursuers, Mr Nye found clear evidence of characteristic cracking, and by December 1996 this was evidently progressive and serious. Mr Nye's memorandum to the roof sheeting manufacturers dated 7 July 1992 (Production 6/18, Appendix 45) was in inter alia the following terms:
"As you requested, I made a visit to this site when I was recently in Scotland. As a consequence, I put in an 'Exceptional Provision' for June having witnessed the fact that this roof is beginning to fail. ...
Cracking has definitely started and you will see from the enclosed photos the cracks are occuring (sic) in the usual positions ...".
[37] As Mr Nye explained in the witness box, the "exceptional provision" recommended in that memorandum was against the possibility of legal claims, the adjective "exceptional" being used on account of the exceptional size of the Centre as a whole. The problems were evident from ground level in the lairage and general purposes hall, looking up. There were full-thickness splits or cracks, maybe 3 inches long, in the vicinity of fixings, and these were characteristic of the emerging generic problem of which the industry was already aware. On the strength of these observations, Mr Nye's concern was with the roofing of the whole Centre, although the state of the double-skin roof over the concourse could not be directly ascertained from ground level in the same way. In Mr Nye's opinion, the problems seen at this time could be expected to get worse.
[38] Four years later, Mr Nye's memorandum to the sheeting manufacturers dated 11 December 1996 (Production 6/18, Appendix 24) confirmed the complete absence of movement joints on any part of the Centre roof, and continued inter alia as follows:
"The area of complaint - the General Purpose Hall was originally a single skin area towards the eaves of the concourse and forms a wing of the building ... (having) an area of 503m2 of which 65m2 is roof light ... I counted 62 sheets as being badly cracked ... (totalling) 134m2 or 31% approximately. ...
This area of roof has definitely deteriorated since I last inspected some three/four years ago. ...
I had a good look at the remainder of the concourse area - mainly double skin with a small area of single skin at the eaves. This area has not deteriorated significantly but I was able to count a total of 110 sheets that would be a cause for concern so far as cracking is concerned.
Many of these are located adjacent to roof penetrations and are possibly caused by foot traffic or poor installation. ...
There is a profusion of very minor cracking in the concourse roof which may not deteriorate much further. What concerns me perhaps is the long-term effect of freeze/thaw cycles on existing cracks.
For safety reasons I only inspected the pennage areas from ground level. Although there was high animal activity below, I was only able to spot two/three cracked sheets in these areas. ..."
Enclosed with this memorandum were photographs showing different areas of the Centre roof with illustrations of typical cracking.
[39] In the witness box Mr Nye explained that by 1996 the roofing problems were no longer "minimal". More cracked sheets were involved, and the cracks were more prominent. Cracking on the concourse was very much the same as elsewhere, with the main damage concentrated near fixings and around the many roof penetrations. Where cracking was due to overtightened fixings, this reflected the fact that fibre cement sheeting, by comparison with materials previously used, had a far greater need for careful handling and adherence to manufacturers' recommendations.
[40] Against that background the defenders' position was that by 1992, and a fortiori by December 1996, the roof of the Centre was already in the process of failing. Physical damage in the form of cracking was manifest in all areas inspected, and had passed beyond any stage of latency as required by authorities such as Murphy, supra, and Invercargill City Council v Hamlin 1996 A.C. 624. In addition, the extent of the problem was plainly "more than insignificant". This was the test affirmed by the House of Lords for the emergence of a cause of action in Homburg Houtimport BV v Agrosin Private Limited 2004 1 A.C. 715, and it was noteworthy that in the same case their Lordships had (as in Dunlop, supra), rejected contentions to the effect that each new exacerbation of a known problem should constitute a separate cause of action. Even in 1992, manifestations of characteristic cracking were sufficiently serious to require "exceptional provision"; both then and in 1996 all areas inspected showed damage "beyond the insignificant"; and the materiality of such damage to the larger roofing areas was by the latter date underlined by the even greater damage (associated with water penetration) which had already developed in the general purposes hall. Subsequent investigations and reports, notably by architects Mr Lippe and Mr Pirie, had confirmed Mr Nye's findings, albeit with the benefit of hindsight, and the pursuers' claim against all defenders now proceeded on the basis that there had been a serious and progressive failure of the roofing over the whole of the Centre. Article 5 of the Condescendence referred to
"... serious defects of materials, design, departure from specification and workmanship which have led to serious and progressive failure in the roofs and to water ingress";
and Article 8 included inter alia the following somewhat inelegant averment:
"The roofing sheets were not merchantable quality in that they lacked durability and are not fit for the purposes which such roofing sheets generally are expected to fulfil and have deteriorated at an early stage to the extent that they no longer fulfil the function of a roof covering".
[41] In the defenders' submission all of these considerations confirmed that by December 1996 at the latest the pursuers had suffered damnum sufficient, when taken in conjunction with the earlier iniuria alleged against the various defenders, to constitute a cause of action and prima facie to warrant the running of prescription under section 11(1) of the 1973 Act. If, as the defenders maintained, the roofing of the Centre was properly to be regarded as a unum quid, the necessary concurrence of damnum and iniuria relative to that roofing as a whole was by then beyond dispute. Indeed, on Mr Nye's evidence, it was clear that the roofing of the whole Centre was effectively doomed from the start on account of inter alia the use of sheeting inherently unfit for its intended purpose. However even if, as the pursuers contended, each element of the roof must be considered separately and in isolation for prescription purposes, the evidence established damnum "more than insignificant" affecting each such element (and liable to get worse) in advance of the critical dates.
[42] For completeness I should at this point record that the defenders (rightly, in my view) limited their contentions to the defects identified by Mr Nye in 1992 and 1996, and did not seriously seek to rely on certain relatively minor snagging problems with the roof of the Centre which arose between 1989 and 1992. At this time the construction contracts and defects liability period remained uncompleted; the problems were localised to flashings round smoke ventilators and other roof penetrations; their scale was not significant; they were soon resolved to the pursuers' satisfaction; and (most importantly of all) they were different in kind from the major defects which are in issue in these proceedings.
[43] The pursuers' answer on the issue of damnum was that it was not appropriate to consider the roofing of the Centre as a unum quid, and that by a date five years before the raising of this action no defects referable to the concourse or lairage ― the subject-matter of their claim ― were sufficiently serious to bring prima facie prescription into play. At that stage the extent of the cracking in these locations was plainly on a far smaller scale than in the general purposes hall. No water penetration had occurred in either of these sizeable buildings, and according to Mr Nye the cracking there might not even have been detectable by a non-expert. The general purposes hall, and its known problems in and after 1996, could and should be left out of account where no claim was advanced in that regard, and in any event where each of the three areas of roof covered what was in effect a separate named building serving its own particular function. The three areas of roof were also different in their construction and pitch, and eaves levels were not uniform throughout. The roof over the lairage was of single-skin, double-pitch configuration. The roof over the general purposes hall was originally also of single-skin construction, but the pursuers had retro-fitted internal insulation boarding at a later date. By contrast, the roofing of the concourse was double-skinned from the beginning, with the external sheeting being fixed to different structural members beneath. The only real similarities were that the general purposes hall and adjacent concourse shared the same monopitch configuration, and of course the external sheeting over all three areas was identical throughout.
[44] While acknowledging the existence of certain local differences in the roofing of the Centre, I am unable to accept the pursuers' contention that for present purposes each area of the roof should be considered as a separate and independent unit. For one thing, the whole of the roof was designed and constructed, using identical sheeting throughout, by the same parties acting under the same contracts and subject to the same certification. Although conveniently distinguished by name, the commercial spaces beneath were not in the nature of separate buildings, either physically or functionally. On the evidence they were inter-connected and complementary parts of an overall complex, and there was even a small degree of overlap or interlocking of the roofing elements. Interestingly, even though the pursuers' witnesses apparently set out to assert the separate and distinct nature of the three elements of the Centre, they did not always manage to avoid references to the Centre and its roof in the singular. On the second day of the proof, for example, Mr Pirie referred more than once to the "different parts of the building", and to "different parts (or areas) of the roof". Mr Lippe's report (Production 6/41) referred to the "roof of the new mart building, and in particular the sale hall". Even the pursuers' solicitor, Mr Barton, writing to the third defenders on 24 July 1997 (Production 6/18, Appendix 37), used the term "the Centre roof" to cover areas of both single- and double- skin construction. And, as previously noted, Mr Nye in 1992 recorded that "... this roof is beginning to fail" and recommended "exceptional provision" by reference to the Centre as a whole.
[45] Over and above that, the relative simplicity of the roof construction appears to me to militate strongly against any realistic differentiation of particular areas. Not only was the external sheeting identical throughout, but (as shown in Production 6/18, Appendix 51) it was affixed to relevant underlying structures in exactly the same way, that is, by means of hook bolts secured through corrugation crowns. Externally, the adjacent general purposes hall and concourse were of parallel monopitch configuration, and together essentially constituted the same roof. Similarly, the roofing of the general purposes hall and lairage, as originally designed and constructed, was single skin. Taking all of these considerations into account, I am satisfied that for present purposes the roofing of the Thainstone Centre must realistically be regarded as a unum quid, and that there is no warrant for treating each of the three constituent areas separately as if it stood alone.
[46] Equally importantly, as the pursuers themselves aver in Articles 5 and 8 of their Condescendence, the problem giving rise to the present proceedings comprised not only progressive cracking and failure of the external sheeting over all parts of the Centre roof, but also essentially the same mechanism of failure throughout. "In the final analysis", according to the pursuers' expert Mr Pirie, the roofing defects and mode of failure were identical in all areas, and in my view the evidence of Mr Nye and Mr Lippe points to the same broad conclusion. Not surprisingly, therefore, most of the pursuers' complaints on Record against the various defenders would have applied equally well vis-à-vis the roof over the general purposes hall had that been included within the scope of the present action.
[47] For these reasons, I do not consider that the pursuers' initial roof problems affecting the general purposes hall can legitimately be described as distinct, discrete or different from those relative to the concourse and lairage on which their present claim is founded. On the evidence before me, the progressive roofing defects over the concourse and lairage were substantially identical to those which initially affected the general purposes hall, and can in my view properly be regarded as related developments, or as further emerging examples, of the same problem. Even a degree of physical separation between one part of the Centre and another would not to my mind have warranted any different conclusion. On the strength of Mr Nye's evidence, which I accept, taken together with the content of his two memoranda to the sheeting manufacturers, I conclude that some months prior to the critical dates relevant and manifest defects had begun to affect the roofing of the Thainstone Centre, taken as a unum quid. However, even if I were wrong in approaching the matter in that way, it is clear that by the same stage such defects were simultaneously present (albeit to differing degrees) in each of the three main areas individually. In particular, Mr Nye's memorandum of December 1996 confirmed the presence of a large number of cracked sheets over the concourse as well as over the general purposes hall, and even his limited ground-level inspection of the lairage roof at that time showed that cracks were visibly present there too. In my judgment the extent and materiality of these defects were plainly "more than insignificant", especially where (as further discussed at paragraph [51] below) the pursuers themselves were acutely aware of resultant water penetration affecting the general purposes hall from September/October 1996 onwards, and regarded the situation as sufficiently serious to warrant the instruction of professional investigation and advice at that time. In all the circumstances, I am satisfied that the pursuers must be taken to have sustained relevant damnum by the end of 1996 at the latest, that is, by a date more than five years prior to the commencement of the present action against any of the compearing defenders.
Conclusion:
[48] I therefore uphold the defenders' contention that for present purposes the necessary concurrence of damnum and iniuria took place well in advance of any of the critical dates. Accordingly, in my opinion, the requirements of section 11(1) of the 1973 Act have been made out, and any obligation on the various defenders to make reparation to the pursuers has prima facie been extinguished by operation of law. However, even in that situation, the validity of the pursuers' claim may be preserved by recourse to either or both of the saving exceptions which appear in sections 11(3) and 6(4) of the Act. In these respects the onus of proof admittedly falls on the pursuers, and the question is therefore whether, on a consideration of the evidence as a whole, that onus has been satisfactorily discharged. To attract relief under section 11(3) the pursuers must prove justifiable ignorance of the concurrence of relevant damnum with causative iniuria so as to delay commencement of any prescriptive period until a date less than five years before the raising of the present action. For the purposes of section 6(4), on the other hand, it would be necessary for the pursuers to establish that, for some sufficient period of time, they were induced to refrain from taking appropriate action by error attributable to the words or conduct of a particular defender. Here the pursuers' claim is that relevant error on their part did result in appropriate action being delayed, and that such error was induced by words or conduct of the third defenders.
Lack of awareness for the purposes of section 11(3)
General:
[49] For the reasons set out earlier in this opinion, I do not consider that the pursuers can legitimately establish the necessary lack of awareness of relevant damnum and/or iniuria by seeking to fragment the roofing of the Centre into supposedly unconnected parts. On the contrary, I am satisfied that the roofing of the Centre as a whole falls to be regarded as a unum quid, and that for present purposes the areas of roofing over the general purposes hall, on the one hand, and over the concourse and lairage, on the other, cannot properly be treated as if they were distinct and severable. Thus awareness of relevant damnum and iniuria affecting any material element of the Centre roof, such as the general purposes hall, must in my opinion be habile to trigger prescription referable, not just to that element in isolation, but to the Centre roof in its entirety. Against that background, the key issue is whether the pursuers have succeeded in proving that by the critical dates they remained unaware, and could not with reasonable diligence have become aware, of the concurrence of relevant damnum and iniuria affecting any material element of the Centre roof.
Awareness of damnum:
[50] Despite their own ill-considered averments at p.49 of the Closed Record, which are denied by all compearing defenders, there is no evidence that the pursuers themselves were de facto aware of any relevant problem with the roofing over the concourse or lairage until dates well within the critical five year period. Their lack of such awareness, and in that context the complete absence of water penetration in these areas, were repeatedly affirmed in the witness box by Messrs Pack and Gregor, and I can see no basis for doubting or rejecting these witnesses' evidence in this regard. Since the roof over the concourse was of double-skin construction, the condition of the external sheeting was not visible from below, and there was no evidence of roof-level inspections having been carried out by the pursuers at any relevant time. No doubt the lairage roof comprised only a single skin, but even there the expert Mr Nye in December 1996 noticed only two or three material cracks over an enormous area extending to thousands of square metres. In addition, Mr Nye accepted that lay people might miss what, with his training and experience, he had known to look out for. The pursuers did not of course have sight of either of Mr Nye's memoranda of 1992 and 1996 until after the present action was in court. Furthermore, as discussed below, the Eternit communications of March 1997, and the third defenders' advice thereon, were focused on the general purposes hall alone; and even Mr Lippe's initial report of August 1997, advising on the problem affecting the general purposes hall, said little or nothing about cracking or other roof defects elsewhere.
[51] By the latter part of 1996, however, the pursuers were only too well aware of developing problems, including serious water penetration, affecting the roof over the general purposes hall, and in my judgement that awareness is by itself sufficient to bring section 11(3) into play on the issue of damnum. If, as I have held, the Centre roof must for present purposes be regarded as a unum quid, then manifest defects or damage referable to any material part of that roof must be equiparated with material defects or damage referable to the whole. In other words, even accepting that the pursuers had no knowledge of specific roofing problems over the concourse and lairage respectively, I do not consider that such localised lack of awareness can avail them where they undoubtedly knew, with effect from September/October 1996, that there was something far wrong with the roof over the general purposes hall. Again applying the tests affirmed in Sinclair, Cole and Musselburgh, the known roofing defects over the general purposes hall - a material part of the Centre as a whole - cannot in my opinion be regarded as distinct, discrete or different from the defects elsewhere which form the subject matter of the present action, and thus cannot be left out of account for present purposes. On the evidence, the pursuers took the situation seriously enough from late 1996 onwards to instruct the third defenders to investigate and report back on the nature and cause of problems which they did not consider should be their own responsibility. Even if the pursuers did not then know the precise mechanism by which the roof over the general purposes hall was failing, what matters for present purposes is that they were well aware (i) that problems existed, and (ii) that they were serious enough to affect their business and to call for expert investigation and advice. They themselves did not regard such problems as de minimis or negligible, and in my judgment the threshold of "more than insignificant" was plainly crossed.
Awareness of damnum: reasonable diligence:
[52] In the foregoing circumstances, it is strictly unnecessary for me to consider whether, with reasonable diligence, the pursuers could by the critical dates also have become aware of damnum relative to the roofing over the concourse and lairage respectively. However, in case this matter may go further, I should indicate that, had it been necessary for me to do so, I would have decided this question in the pursuers' favour. As I understood it, their position was (a) that the appropriate test for reasonable diligence was that of the ordinary prudent building owner having regard to all circumstances: Glasper, supra, per the Lord President (Hope) at p.48; (b) that there was no evidence to suggest that an ordinary prudent building owner would have troubled to instruct or carry out specialist inspection of a relatively new roof prior to the stage at which material problems such as water penetration began to emerge; (c) that British Standard 5427 recommending annual inspection of all roofs was not directly addressed to building owners, and could not be taken as setting a universal standard; (d) that, in the period of months between the emergence of water penetration in the general purposes hall and the critical dates, the pursuers continued to act reasonably in instructing the third defenders to investigate and report back on the nature and cause of what seemed to be a localised problem; and (e) that the absence of any worthwhile information or advice from the third defenders, or from any other quarter, by the critical dates could not fairly be laid at the pursuers' door.
[53] The defenders, by contrast, stressed not only the lengthy period, measured in years, for which the roofing of the Centre had not been inspected by the pursuers, or by anyone on their behalf, but also (and more pointedly) the period of several months during which the concourse and lairage roofs were still not inspected by or on behalf of the pursuers after roofing problems had emerged over the general purposes hall. If Mr Nye had been able to identify material cracking of roof sheeting in all areas in December 1996, and if Mr Lippe (as he acknowledged in evidence) had also been able to identify some degree of cracking (however minor) in the concourse roof by late 1997, then it was reasonable to infer that an appropriate expert instructed by the pursuers could have identified the same thing prior to the critical dates.
[54] In my judgment, however, the defenders' argument here sets too high a standard to be achieved by the pursuers as ordinary prudent building owners in advance of the critical dates. In the first place, as regards the period before water penetration problems began to affect the general purposes hall in September 1996, I do not accept that an ordinary prudent building owner would have caused a relatively new roof to be inspected, annually or otherwise, to the specialist standard necessary to pick up asymptomatic cracking of the kind which caused concern to Mr Nye from 1992 onwards. In this context I do not accept that, in the absence of specific advice from the third defenders, the pursuers could reasonably have been expected to know of, far less to follow, the recommendations contained in British Standard 5427. More importantly, in the second place, as regards the period after September/October 1996, I am not prepared to hold that the pursuers acted unreasonably, or departed from the standard of the ordinary prudent building owner, in placing matters in the hands of the third defenders for investigation and advice within a reasonable timescale. By the critical dates all apparent problems were still localised to the small area of roof over the general purposes hall and were perceived as "snagging" items; to some extent these had been alleviated by temporary crack sealant work carried out by the pursuers themselves; the next winter was some months away; there was no sign of equivalent water penetration affecting any other part of the Centre roof, notwithstanding the enormous areas involved; and in the whole circumstances (agreeing with Mr Pirie) I do not think that the pursuers can fairly be criticised for not losing patience with the third defenders, and obtaining independent advice, before the critical dates, or a fortiori early enough in advance of the critical dates to enable such advice to be timeously obtained and digested. The running of their own business would no doubt have been the pursuers' primary concern and preoccupation over the relevant period, and while the roof problems appeared so localised it does not seem to me that these merited greater attention than they in fact received.
[55] An important factor here, in my view, is the third defenders' conduct at the material time. Having been asked, as experts, to investigate and advise on the nature and cause of the developing problem with the roof of the general purposes hall, they allowed many months to pass without giving the pursuers any sensible response. As late as 8 July 1997 (Production 6/18, Appendix 34) they offered the highly questionable advice that none of the companies involved in the roof cladding had any legal or contractual obligation to take any action, and that the pursuers should therefore face up to paying some or all of the remedial costs themselves. The unstated further implication was that none of the professionals or contractors involved bore any responsibility either. Neither in that letter, nor in their subsequent letter of 17 July 1997 (Production 6/18, Appendix 35) did the third defenders specifically indicate the existence of any problem with the roofing of the concourse or lairage.
[56] With these considerations in mind, it seems to me that certain conclusions can legitimately be drawn in the pursuers' favour. If, as the experts charged since late 1996 with investigating and ascertaining the nature and cause of the pursuers' roofing problems, the third defenders genuinely did not know what was wrong with the roof over the general purposes hall, and a fortiori if they did not appreciate that similar roofing defects were also manifest over the concourse and lairage, then I do not see why the pursuers themselves, as lay clients, should have such awareness imputed to them in advance of the critical dates. Conversely, if the third defenders were aware of the true nature of the problem, and in particular of the existence of defects over the concourse and lairage as well as over the general purposes hall, but failed to share this knowledge with the pursuers, then again I do not see why any such knowledge should be imputed to the pursuers at that time. Having led no evidence on such matters the defenders, and the third defenders in particular, cannot in my view complain if the most favourable inferences as to state of awareness are, for present purposes, drawn in the pursuers' favour. Admittedly, in their letter of 17 July 1997, the third defenders purported to blame the pursuers for late disclosure of roofing problems extending more widely than had previously been thought, but in the absence of evidence from the author of that letter I am not prepared to disbelieve Mr Pack's contrary account, and in particular his denial of having furnished the third defenders with details of problems more widespread than the general purposes hall at any time.
[57] Accordingly, had it been necessary for me to reach a decision on this matter, I would have declined to hold that, with reasonable diligence, the pursuers could and should have become aware prior to the critical dates that they had suffered loss and damage, not only in relation to the general purposes hall but also in relation to the adjacent concourse and lairage.
Awareness of iniuria:
[58] I now turn to the related issue regarding the pursuers' awareness of iniuria for the purposes of section 11(3) of the Act. As affirmed in Dunfermline District Council, Greater Glasgow Health Board, Glasper and Kirk Care Housing, the question is in my view whether the pursuers were by the critical dates aware, or could with reasonable diligence have become aware, that relevant loss and damage known to them was actionable, in the sense that a stateable prima facie claim in negligence could properly be advanced against someone. Certainty or even probability of success in any such claim would not, I think, be required. In this connection the evidence was conflicting and, in places, difficult to evaluate without having had the advantage of seeing or hearing any of the witnesses. On the one hand there were apparent concessions under cross-examination, by Mr Pack in particular, to the general effect (i) that by the critical dates the pursuers realised that a properly designed and constructed roof would not be failing after only a few years, and (ii) that by then they knew that the cause of the problem had to be some fault in design, construction or materials. In cross-examination, moreover, Mr Gregor struggled to identify any other possible cause, and the pursuers' expert Mr Pirie at one point appeared to accept that as early as March 1997 the pursuers were "considering a possible claim". In these circumstances it was the defenders' contention that the pursuers had or, with reasonable diligence, should have had all the knowledge required to start the running of prescription in advance of the critical dates, and had failed to discharge the onus of showing otherwise. On any view, it was submitted, the pursuers had or should have had the necessary knowledge by a date more than five years before this action was commenced against the fourth defenders on 25 July 2002.
[59] By contrast the pursuers' position was that these apparent concessions by Messrs Pack and others could not fairly be accorded much weight. In Mr Pack's case they had been materially qualified or departed from, especially in re-examination; Mr Gregor had said very little in the first place; and ultimately the evidence in question concerned no more than the theoretical possibility of a legal claim being available. By the critical dates the pursuers did not in fact know that any such claim was open to them nor, with reasonable diligence, could they timeously have acquired such knowledge. They did not even know what was wrong with the roof.
[60] Perhaps the best indication of the pursuers' contemporaneous state of mind was to be found in what they actually did during the crucial months from September/October 1996 onwards, and what information and advice they actually received from the third defenders and others over that period. The pursuers' actings at this point, it was said, were clearly inconsistent with their having had the requisite degree of awareness for prescription purposes. As ordinary prudent building owners they asked the third defenders, as experts, to investigate and report back on the nature and cause of the problems which were evident in the roofing of the general purposes hall. As previously noted, the third defenders furnished them with no sensible response prior to the critical dates, and by letter dated 8 July 1997 purported to advise that none of the companies involved in the roof cladding (and by implication no-one else) had any legal or contractual obligation to take any action. Not surprisingly the pursuers were sceptical of the correctness of this advice, as indeed they had been sceptical of suggestions by Eternit, the sheeting manufacturers, in March 1997 to the effect that excess foot traffic and/or condensation might realistically account for the problems experienced over the general purposes hall. Nevertheless, such scepticism was not to be equated with the degree of awareness necessary for prescription purposes, namely actual knowledge or at least a well-founded belief that a claim in negligence could stateably be directed against some responsible party.
[61] Section 11(3) of the Act was not in terms concerned with the mere possibility of a claim being available. As explained by the Lord President (Hope) in Glasper, at p.47F-G,
"... the lack of awareness which requires to be established ... is a lack of awareness that a loss has occurred caused by an act, neglect or default which gives rise to an obligation to make reparation for it. We agree with Lord Clyde's observation in Greater Glasgow Health Board ... that the subsection looks for an awareness, not only of the fact of loss having occurred, but of the fact that it is a loss caused by negligence."
With these considerations in mind, it was said, the evidence showed that the pursuers' state of knowledge prior to the critical dates fell short of what would have been required to start the running of prescription. At its highest, the pursuers had some notion that a third party claim might possibly be open to them in due course, but they did not in fact know that their loss and damage was "... caused (by an act, neglect or default)" as section 11(3) required.
[62] In my opinion there is considerable force in the pursuers' contentions on this aspect of the case. On the evidence referable to the crucial period between September/October 1996 and the critical dates, it can in my view reasonably be concluded (i) that the pursuers were still waiting to be told the nature of the roofing problems over the general purposes hall; (ii) that they did not then know that these were caused by negligence; and (iii) that even with reasonable diligence they could not timeously have acquired such knowledge. Perhaps the pursuers' position would have appeared stronger if they had passively accepted the assertions and advice tendered to them by Eternit and the third defenders in March and July of 1997. In my view, however, their sceptical reaction to certain assertions and advice, coupled with insistence that the problem should be treated as a long-delayed snagging matter, cannot properly be equated with the degree of awareness which the statute requires. Without the benefit of legal advice at that stage, and without knowing what was actually wrong with the roof, the pursuers were I think merely striking a commercial attitude in maintaining that others must rectify the situation on their behalf notwithstanding the fact that any contractual defects liability period had long since expired. Looking fairly at the evidence as a whole, I am satisfied that by the critical dates the pursuers truly had no idea whether any legal responsibility might be enforceable at their instance, and could only speculate as to the possible cause or causes of their problem. The fact that on 8 and 17 July 1997 ― less than five years before the present action was raised against the first three defenders, and barely more than five years before the fourth defenders were convened ― the third defenders' written advice was essentially to the effect that no-one carried legal responsibility is to my mind a powerful factor tending to support and underline the lack of awareness which the pursuers seek to prove. Indeed, as illustrated by the following paragraph from their letter of 17 July 1997, the third defenders went even further in suggesting that investigation of any possible third party redress would be a difficult and expensive exercise:
"As previously stated, the Defects Liability Period for the project has long since expired but this would not prevent redress under normal 'fitness for purpose' trade law if such a situation were to be proven. The eventual determination of such a matter would be a legal issue but we would be happy to undertake preliminary work to establish whether or not a case for such action exists and to instruct an independent investigation of the roof structure to be undertaken. The cost of this work by a Specialist Consultant would be in the region of £2,000 and our charges would be on an hourly rate of £55 per hour."
[63] Significantly, when the pursuers' solicitor Mr Barton (now deceased) wrote to the third defenders on 24 July 1997 (Production 6/18, Appendix 37), he did not appear to know on what basis, or against whom, any legal liability might ultimately be asserted. At that time, "... in order that we may form a view as to how best to deal with this unfortunate situation", he asked for inter alia details of (i) the contractor or sub-contractor who might be responsible for "any current defects" in the construction of the roof; (ii) the parties responsible for specifying and checking the conformity and installation of the roofing materials; (iii) the manufacturers' fixing instructions and relative contractors' undertakings; and (iv) the parties responsible for roof design. He went on to ask who might be responsible if there had been "... some latent or other defect in the manufacture of the roofing material", and queried the possibility that old stock might have been used. "Being realistic", the final paragraph began, "... I suspect that this matter is going to take some considerable time to be resolved ...". In my judgment this letter, written only 24 hours before the last of the critical dates, tends to confirm the pursuers' lack of any real understanding as to what was wrong with the roof. Even if the possibility of a claim was, by this late stage, beginning to be considered, as a contemporaneous memorandum suggested, Mr Barton's approach to the third defenders was still of a wide-ranging exploratory nature. At most, according to Mr Pack, the pursuers only thought that they might have a claim against somebody, and in my view that could not call for more extensive action by way of reasonable diligence than the pursuers then actually took, namely instructing an independent expert appraisal from someone like Mr Lippe.
[64] Even Mr Lippe's first report to the pursuers in the course of the following month (August 1997) did not in my view clothe them with the degree of awareness required for the purposes of section 11(3). In particular, Mr Lippe was at that time unable to form a concluded view as to the cause of the cracking on the roof over the general purposes hall. His investigations were ongoing and uncompleted over the autumn of 1997, and the pursuers' lack of awareness of the true nature and cause of their roofing problems therefore persisted well into the five-year period immediately preceding the commencement of this action against all compearing defenders.
[65] In cross-examination for the fourth defenders on Day 3 of the proof, the pursuers' expert Mr Pirie bore to agree with the proposition that by March 1997 his clients would have known "... that a roof properly designed, properly constructed and ... fully maintained should not let in rain", thereby confirming failure in maintenance, for which responsibility might lie with the pursuers themselves, as one of the possible causes in view at that time. According to Mr Pirie vandalism, chemical reactions, wind loading and ultra-violet light were also among the possible causes of which building owners such as the pursuers would then have been aware. As already noted, Mr Barton in his letter of 24 July 1997 raised latent defect and the possible use of old stock as additional matters of concern, and the evidence in this context also included reference to extreme weather conditions and to thermal forces including the build-up of heat from the insulation boarding retro-fitted by the pursuers in the general purposes hall. By the critical dates, therefore, there might be figured a number of possible explanations for the pursuers' roofing problems which would not necessarily involve third party negligence, breach of duty or breach of contract.
[66] Significantly, Mr Pirie throughout his evidence insisted that the pursuers had no means of knowing the precise nature of the problem with the roofing over the general purposes hall, or (in consequence) of attributing it to culpable failure of any kind. In his opinion it was entirely appropriate for the pursuers to have placed the matter in the hands of the third defenders as project architects for investigation and advice, and there was nothing more that ordinary prudent building owners could reasonably have been expected to do. Further, in his opinion, the pursuers were as late as 24 July 1997 "... still seeking advice without response", and in that regard he was critical of the third defenders for failing to carry out any proper investigation or to tender the advice for which the pursuers were legitimately waiting. No evidence was of course led on behalf of any of the defenders, nor did they develop any substantive contrary position here in cross-examination, and for the reasons already discussed at paragraph [54] above I can see no good reason to doubt or reject Mr Pirie's evidence on these important issues.
[67] Against that background it seems to me that the apparent admissions by Mr Pack and others in cross-examination must be approached with great caution. Messrs Pack and Gregor in particular were non-experts, as regards both roofing and the law, and their evidence was given at a time when they carried the burden of several years' hindsight which must inevitably have affected the tenor of their responses to some degree. Having regard to the evidence as a whole, including inter alia the written advice which the pursuers were actually receiving from the third defenders as late as July 1997 and, perhaps consequentially, the lack of any legal advice available to the pursuers until an even later stage, I am not persuaded that I should attach determinative weight to the apparent concessions as the defenders invited me to do. On the contrary, having read and re-read the relevant passages of evidence, I have reached the conclusion that they do not go far enough to outweigh the significance of what the pursuers were actually doing, prior to and even beyond the critical dates, to ascertain the true nature and cause of the roofing problems over the general purposes hall.
[68] It is true that in the course of his evidence-in-chief Mr Pack observed (with reference to the third defenders' letter of 8 July 1997) that "... it was obvious a breach had taken place". He also volunteered that the first suggestion of any third party breach of contract or breach of duty came in that month. However the factual basis for such observations was far from clear, and they were made in direct conjunction with assertions that the pursuers had not then actually formed an opinion, and that they "... had to look much further at what the issues were". They "... still had no advice" on such matters. In cross-examination, Mr Pack's formulation of the pursuers' state of awareness by March 1997 was that "... somebody or something" was responsible, and although he went on to agree that "responsibility" might, as a matter of terminology, be equated with "blame" his stated complaint was still that, even four months later, the pursuers had received only a re-roofing solution but no explanation of the underlying cause from anyone. In re-examination, early on Day 2 of the proof, Mr Pack's position was consolidated and re-affirmed in the following significant passage of evidence:
- "Now in the course of ... cross-examination it was suggested to you, I think, that the, or a suggestion was made to the effect that because the roof, ehm, on the general purposes hall failed earlier than you expected that that failure must be caused by a culpable failure on someone's part ... - Yes.
- ... before being asked ... - Yes.
- ... it was suggested to you it was that effect, at least? And I'd just like to examine your view about that, ehm, matter in a little more, ehm, detail. First of all, between September 1996 and July 1997, ehm, did you or ANM have any information which indicated that the roof problem of the general purposes hall was caused by a breach of contract or breach of duty on someone's part? - No, definitely not.
- ... see, I want to reflect that, I'd like to ask, perhaps, did the simple fact of the existence of the problem in the general purposes hall mean that there must have been a breach of duty or contract by somebody? - We had, we had no, no notion of that, I mean we were simply trying to get a solution to our problem, we had water ingress and we wanted a solution.
- Well perhaps I can ask you in this way, ehm, did the mere fact of there being a problem of itself mean that there was a breach of duty or breach of contract by somebody? - No.
- Now in the course of your answers, I think a formulation you adopted and agreed to some extent with my learned friend was that you knew something or someone was to blame. Now, I ought to ask you why you said, ehm, the word 'something' in distinction to 'someone'; what did you have in mind? - We knew we had a problem, ehm, we didn't know the nature of the problem, which is why we had asked our advisors to look into it along with the contractors to give us an answer, so we didn't know whether the, whether there was some issue about the design, or some issue about the material or whatever, ehm, whether it was just badly fixed or whether it was because ... we had no idea, we were asking them to come up with a solution to the problem.
- Did you have any idea if anyone was to blame? - No."
[69] If Mr Pack's evidence is read fairly and as a whole, I do not consider that it lends support to the defenders' contentions. In broad terms his position all along was that, even as late as July 1997, the pursuers were in ignorance as to the cause of the problem and were still legitimately awaiting a considered response from the third defenders. On the strength of such evidence, the pursuers were not by the critical dates aware that progressive failure of the roof sheeting was under way, nor that the specified sheeting was inherently unfit for its purpose, nor that culpable failure could be identified on anyone's part. In their proper context, therefore, the apparent concessions on which the defenders founded cannot in my view be taken as referable to anything more than theoretical possibilities which might, or might not, turn out to have any substance. In particular, as it seems to me, the pursuers' contemporaneous actings prior to the critical dates, coupled with the third defenders' failure to furnish them with any worthwhile advice, must carry much greater weight than the apparent admissions in question. The same approach would I think have been appropriate had the position been reversed, with clear evidence of contemporaneous awareness being likely to outweigh apparent denials in the witness box.
[70] In my judgment Mr Gregor's evidence was even less favourable to the defenders. He repeatedly emphasised how the pursuers had received no advice from the third defenders regarding the nature, cause or scope of the problem, or of the possibility of breach of duty or breach of contract on anyone's part. Despite water-damage complaints from tenants/stallholders the possibility of a claim by the pursuers against any third party was not then in mind, as evidenced by their decision to leave matters in the hands of the third defenders as expert advisors. In Mr Gregor's terms the pursuers had "imagined" that a snagging issue was involved, or "treated" the problem as a matter of delayed snagging, but the true causes remained unclear. Their real concern was to get the leaks sorted. In cross-examination, he agreed in general terms that sheets should not be cracked or leaking only six years after they were put on the roof. However, when then asked whether, to the pursuers' knowledge, roof sheets properly designed, manufactured and erected did not leak after six years, he replied "We weren't expecting that, of course", and the line of questioning was not pursued with him any further. Significantly the apparent concession which followed, to the effect that the pursuers could think of no other relevant explanation, seemed to be focused on weather conditions such as snowfalls and storms, and was in any event inconsistent with the other evidence summarised in this and the preceding paragraphs.
[71] Another line pursued with Mr Gregor in the course of his evidence concerned receipt of the third defenders' letter of 27 November 1996 (Production 6/18, Appendix 23). That letter gave notice of an impending inspection by the sheet manufacturers Eternit, and inter alia contained the remark "... the buck has got to stop with them!" According to the defenders this should be read as confirming the existence of a claim open to the pursuers, even at that early stage, but in my view the remark does not obviously bear a meaning which (for the reasons already given) would have been contradicted and outweighed by subsequent events in the period up to and beyond the critical dates. In its context, it might have been no more than an expression of hope. With that in mind, and in the absence of evidence from the author of the letter, I see no reason to doubt the credibility of Mr Gregor's response to the effect that he did not then understand the remark as a reference to culpable failure at all. On the contrary, to him it merely reflected his wish that someone from within the contractual chain would provide a practical solution. After all, the manufacturers were only coming to investigate the situation at that stage.
[72] If by April 1997 the third defenders, or the sheeting manufacturers or suppliers for that matter, had acknowledged to the pursuers (even in general terms) that there was a real problem with the specification and/or installation of the external roof sheeting, then in my opinion that would have been enough to put the pursuers on inquiry, and perhaps even to saddle them with the requisite degree of awareness regarding iniuria for the purposes of section 11(3) of the Act. However, notwithstanding Mr Nye's memoranda which made it abundantly clear what the real problem was, no such acknowledgement was forthcoming and the pursuers were essentially left in the dark until, on their own initiative, they sought independent advice from about the end of July 1997.
Conclusion:
[73] In all the circumstances, therefore, I conclude in the pursuers' favour that by the critical dates they were not aware, and could not with reasonable diligence have been aware, that the known problems with the roofing of the Centre were "... caused (by an act, neglect or default)" for the purposes of section 11(3) of the Act. Specifically they had not then progressed beyond surmising, as a mere possibility, that the roof problems might be attributed to culpable third party failure sufficient to give them a prima facie cause of action. So far as reasonable diligence is concerned, it seems to me that the pursuers acted reasonably and responsibly in putting matters in the hands of the third defenders for investigation and advice in due course, and I do not accept that they can now fairly be blamed for not having obtained independent advice elsewhere before the end of July 1997 or, a fortiori, before the beginning of April in that year. In this connection I am not impressed with evidence taken from Mr Pirie and others, in general terms and without reference to specific matters, to the effect that the pursuers' state of awareness was no further advanced in July 1997 than it had been in the preceding March. As I see it, these witnesses were liable to have understood counsel's questions as referring to the absence of sensible advice from the third defenders over that period, and I do not think that the answers can fairly be relied on as confirming awareness by March 1997 of information and advice which did not even begin to emerge until some four or five months later.
[74] On these grounds I am satisfied that all of the defenders' respective pleas of prescription must now be repelled. As it seems to me, the fourth defenders are in no stronger position here than the second and third defenders despite the later commencement of this action against them. In particular, for the reasons already given, I do not consider that any significant development occurred between early April and late July 1997 which could have started prescription running, in a question with the fourth defenders, at a date more than five years before they were convened.
Induced error for the purposes of section 6(4)
[75] Along similar lines, I have reached the conclusion that the pursuers' belief by the critical dates that the nature, cause and scope of their roofing problems were truly uncertain, and could not readily be ascertained, may fairly be treated as an "error" on their part, and that such error was in large measure induced by the conduct of the third defenders in allowing months to pass without either furnishing the pursuers with any sensible response to their requests for expert investigation and advice or, failing that, advising the pursuers that they must seek expert assistance elsewhere. For this purpose it is not necessary for me to hold that the third defenders deliberately intended to maintain the pursuers' erroneous understanding over the relevant period, or in their letter of 8 July 1997 to instil the belief that none of the companies involved in the roof cladding had a legal or contractual obligation to take any action, or in their letter of 17 July 1997 to convey the impression that investigating the possibility of a product liability claim would be a difficult and expensive exercise. Indeed I do not do so. Neither intention nor motive is in my view a necessary component of "inducement" for the purposes of section 6(4) of the Act, the question being merely whether, objectively speaking, any relevant error was caused or materially contributed to by the words or conduct of the defender concerned: see BP Exploration Operating Co Ltd, per Lord Millett at para.[104].
[76] Again, in my view, the pursuers' position might have appeared stronger if in 1997 they had passively accepted such advice as was tendered to them, however inadequate or misleading, but as before I am not persuaded that their sceptical reaction on certain issues went far enough to dispel any notion of error on their part, or otherwise to disqualify them from relief under section 6(4). In this context I do not think that it matters whether the third defenders knew, or did not know, the true extent and cause of the roofing defects at the Centre, or the identity of responsible or potentially responsible parties. The point is simply that, by reason of these defenders' conduct over a period of many months, the pursuers were induced not to take independent steps which might have (a) revealed the true position, (b) enabled them to contemplate legal action, and incidentally (c) satisfied the requirements of section 11(3) so as to start the running of the five-year prescription.
[77] In challenging all of this, the third defenders maintained that the pursuers had never been in error within the meaning of section 6(4), that they themselves had done nothing to induce any such error, and that such advice as they tendered had not in fact been accepted. For the reasons given, however, I regard these contentions as too narrowly focused, and consider that the third defenders' prolonged inaction in the face of a legitimate expectation of expert advice and assistance, coupled with the terms of their letters of 8 and 17 July 1997, were significant factors which caused or materially contributed to the pursuers' delay in taking appropriate steps to protect their own interests. One way or another, I do not think that it lies in the mouth of the third defenders to blame the pursuers for the inadequate state of their knowledge prior to the critical dates, and in my opinion the issue of reasonable diligence arising under section 6(4) must again be resolved in the pursuers' favour along familiar lines.
[78] In all the circumstances I consider that the pursuers' claim to relief under section 6(4) is well-founded, and that, in a question with the third defenders, this is a further reason why the claim advanced in the present action has not prescribed.
Disposal
[79] On the whole matter I shall repel the sixth plea-in-law for the second defenders, the first plea-in-law for the third defenders and the first and second pleas-in-law for the fourth defenders, and allow a proof before answer.