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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> North Lanarkshire Council v British Telecommunications Plc [2000] ScotCS 206 (20 July 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/206.html Cite as: [2000] ScotCS 206

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[1] In November 1993 the pursuers raised an action for damages against the defenders. The pursuers were at that time the local roads authority for the Motherwell area. In that action they claimed that preliminary to the undertaking of major road improvement works in Motherwell town centre they served certain notices upon the defenders in terms of section 21 of the fourth schedule to the Public Utilities Street Works Act 1950. In accordance with the provisions of that Act they gave the defenders details of the works which they were to undertake and required the defenders to give notice to them as to any apparatus which would be affected by such works. The first said notice was served upon the defenders on 29 January 1985. Further notices were served for a period of years thereafter ending in March 1989. It was agreed between the parties that civil engineering contractors employed by the pursuers would require to construct or reconstruct a number of manholes in order to protect the defenders' apparatus. The contract works were commenced on 22 May 1989. According to the pursuers it became apparent that the information supplied by the defenders was inaccurate and thereafter the defenders delayed in providing accurate information to enable the pursuers to instruct their civil engineers to do the requisite work. Those delays resulted in expenditure by the pursuers to their civil engineers which the pursuers seek in this action to recover by way of damages. The defenders were required to give such information regarding not only existing manholes but any new manholes which required to be constructed as a result of the roadworks.

[2] The action came before me on the motion roll in November 1999. There were two motions made on behalf of the pursuers. The first was to allow North Lanarkshire Council to be sisted as pursuers in substitution for Strathclyde Regional Council in terms of the statutory provisions governing local government reorganisation, all in terms of a Minute of Sist, no. 19 of Process. That Minute had been lodged on 12 December 1997 and had originally been opposed. Answers thereto were lodged in January 1998. Thereafter adjustment took place of the Minute and Answers. A Note of Argument for the defenders was lodged in June 1998 and formed no. 24 of Process. Thereafter a hearing was fixed for October 1998. Opposition to the Minute of Sist was withdrawn in September 1998. The motion to allow the minuters to be sisted as pursuers in terms of the Minute of Sist was not opposed, nor was a further motion for expenses occasioned by the defenders' opposition to the Minute from February 1998. The defenders accepted that they had maintained opposition to the Minute of Sist longer than they should have done. I therefore granted that motion with expenses against the defenders.

[3] The pursuers' second motion was to allow the Closed Record to be amended in terms of a Minute of Amendment and Answers as adjusted (no. 20 and 23 of Process). Counsel for the pursuers submitted that the Minute of Amendment could not be moved until the Minute of Sist had been dealt with as the Minute of Amendment dealt inter alia with matters arising out of the local government reorganisation legislation.

[4] Counsel for the pursuers was aware of the nature of the defenders' opposition to the motion to allow the Record to be amended in that the defenders had lodged a written note of grounds of opposition to that motion. He responded to that written note in the following way. Firstly, he submitted that it was clear from the original Summons that the alleged failure on the part of the defenders to supply adequate and accurate information to the pursuers occurred both in the negotiation period prior to the commencement of the roadworks, that is to say from 1985 up until 1989 and after that period and during the time when the roadworks had actually commenced. He submitted that after a long period in which various amendments took place to the Record the new Minute of Amendment raised the same case as had been raised in the original Summons, that is to say a failure to supply the required information during the period of 1985 to 1989 and also thereafter. The Minute of Amendment did not raise any new case against the defenders but merely expanded upon the case originally laid.

[5] As far as any objection that might be taken on the ground that the Minute of Amendment came too late, counsel for the pursuers pointed out that after the Minute of Sist was lodged in December 1997 the pursuers had difficulty in finding records. The adjustment procedure thereafter continued while the pursuers were waiting for the question of the sist to be dealt with. During the period between 1997 and 1999 the pursuers' solicitors had difficulty in getting information from their clients regarding communications which has passed between the defenders and the pursuers from 1986 until 1989. This included a number of plans which had to be traced. Meanwhile the opposition to the Minute of Sist was continuing and the pursuers took the view that they could not move the motion for amendment since they no longer existed. The pursuers accepted that there was delay between October and June. During that period they were attempting to adjust further but were unable to do so for the above reasons. However between February and October the defenders had maintained their opposition to the Minute of Sist. Counsel for the pursuers submitted that the delay was not undue having regard to the subject matter of the action and was not in itself a reason to prevent the action continuing.

[6] Counsel for the defenders intimated that he did not oppose amendment in terms of paragraphs 1 and 3 of the Minute of Amendment which dealt with the question of the appropriate pursuer in the instance and the consequential amendments to condescendence 1 in the Record. Quoad ultra he opposed the Record being amended in terms of the Minute and Answers as adjusted. In the first place counsel contended that the effect of the amendment was to change the basis of the pursuers' case and to insert a new case on a prescribed obligation. He pointed out that in terms of the original Summons averments were made about misrepresentations between 1985 and 1989. Any averments concerning misrepresentations after 1989 were removed from the pleadings by way of earlier amendment. The pursuers now sought to amend these averments back into the pleadings and to focus particularly on the post-1989 averments. He claimed that information to support the pursuers' position must have been available to instruct both cases regarding the pre-1989 misrepresentations and those made post-1989 in order to enable the original Summons to be drafted. Counsel for the defenders then referred me to a written chronology of procedure which he had prepared recording all steps taken in the action from the raising of proceedings in 1993 to date. These events disclosed what he described as an inordinate litany of delays on the part of the pursuers. These delays had to be seen against his submission that the whole case, which is now sought to be put on Record by way of the present Minute of Amendment, was included in the original Summons. Counsel for the defenders went on to submit that in the present case the obligation upon which the original action was based must remain the same throughout the period between the raising of the action and the current Minute of Amendment. If a different obligation was sought to be founded on after the prescriptive period had elapsed then the amendment would fall to be incompetent. He referred to the cases of British Railways Board v Strathclyde Regional Council 1981 S.C. 90, J. G. Martin Plant Hire Ltd. v Bannatyne Kirkwood Fraser & Co 1996 S.C. 105 and N. V. Devos Gebroeder v Sunderland Sportswear Ltd 1990 S.C. 291. He submitted that the obligation to make reparation from one breach of duty differs from that arising from a different and separate breach of duty. He submitted that in the original claim the duty alleged to have been breached was that to provide accurate information regarding the manholes. That claim was amended in terms of the Closed Record as it stood at October 1997. The present Minute of Amendment sought to lengthen the pleadings substantially and to found on not just a breach of duty but on some separate claim in respect of fault and negligence. This separate claim appeared for the first time in the pleadings in the new Minute of Amendment. Accordingly, he submitted, the effect of the Minute of Amendment was to introduce a new case based on common law negligence and that case had prescribed since June 1994.

[7] Counsel for the pursuers replied to that contention by submitting that the nature of the action as originally laid was the same as now presented in the Minute of Amendment, namely an obligation to make reparation because of negligent provision of information. While it might be said that the foundation for that claim had varied to some extent over the period of amendment and adjustment of the pleadings in this case, the original obligation founded upon was the same as that founded upon in the pleadings as now sought to be amended.

[8] In my opinion counsel for the pursuers' submissions are to be preferred. This case all along was based on a failure by the defenders to supply information requisite for the direction by the pursuers of their contractors in carrying out the roadworks in terms of their statutory powers. In the action as originally laid the pursuers founded upon the defenders' failure to supply proper information prior to the commencement of such roadworks and also their continuing failure to supply the requisite material even after the roadworks had started. Accordingly they had raised proceedings based upon these two failures within the prescriptive period. Even although the adjustments and amendments over the course of the years were such as to vary the grounds upon which the action was laid, nevertheless it remains the case that the basis of the action as now proposed is similar in all necessary respects to the action as originally laid and therefore in my opinion the question of prescription does not enter into the equation (N. V. Devos Gebroeder v Sunderland Sportswear Ltd).

[9] Counsel for the defenders' second ground of opposition to the amendment related to the delays in progressing the action. He pointed out that in terms of the chronology which he had prepared the action had suffered a number of delays in progress, the fault for which lay mainly at the door of the pursuers. He submitted that no good explanation had been tendered for the Minute of Amendment coming as late as it did. He submitted that all the necessary drawings and information upon which to found this action had been provided to the pursuers at a very early stage, even at the stage prior to the raising of the Summons. In any event, a commission and diligence for the recovery of documents had taken place as long ago as 1995 and no attempt had been made to recover any further documents since then. He accepted that some delay had been occasioned in 1996 due to the defenders' opposition to the Minute of Sist in terms of the local government reorganisation legislation. However, he claimed that that was no good reason for the Minute of Amendment coming as late as it did. Indeed, the Minute itself had been lodged some two years ago and no good reason had been given for the lack of progress in terms thereof since that time. To claim that such delay was occasioned solely by the defenders' opposition to the Minute of Sist was inaccurate since the pursuers had adjusted extensively during the period of such opposition and even after such opposition had been dropped. As late as June 1999 when the case was put out By Order, the pursuers were still wanting to adjust the Minute and Answers. Accordingly, even if there had been no opposition to the Sist, the position would have been the same in his submission. Furthermore, counsel for the defenders submitted that the position could not be made good simply with an award of expenses as there had in this case been real prejudice to the defenders. The new pleadings focused the action properly for the first time. For the first time the defenders are told in detail of the extent of the erroneous information which was supplied. The defenders are now being asked to look at information given to the pursuers in the period 1986 to 1988. They are also being asked to look at how inaccurate that information was. Understandably recollections of that period are now poor. Working papers on which those drawings were based have been destroyed. The defenders have moved to smaller premises. The persons involved have left the defenders' employment, some indeed are refusing to co-operate and some are unable to be traced. Accordingly, in seeking to answer the Minute of Amendment properly, the defenders have been prejudiced by the delay and would be so prejudiced at any proof.

[10] Counsel for the pursuers accepted that there had been delays in this action but attributed the fault thereof to both parties. He claimed that from the outset of the case the sort of documentation upon which reliance would be placed was brought to the attention of the defenders' agents. In that respect the defenders have all along been on their guard that all documentation with regard to the complaints raised in the Summons and in the Record as adjusted should be retained with a view to proof.

[11] In my opinion it is clear that there have been inordinate delays in bringing this action to a climax. In my opinion the pursuers were justified in not seeking to move their Minute of Amendment until the question of the sist had been determined. At least part of the Minute of Amendment which dealt with amendment to the instance and to condescendence 1 of the pleadings which dealt with the averments concerning the parties themselves could clearly not be moved until the new pursuers had been sisted to the action. That accounted, however, for only part of the delay and I have no doubt that even since the opposition to the sist was withdrawn the amendment could have been moved some time before November 1999. After all, on the pursuers' own submissions, the Minute of Amendment sought merely to restore the case to the basis upon which it existed when the original Summons was raised, albeit with some expansion. However, I am not satisfied that the defenders have suffered real prejudice by the delay occasioned by the pursuers. Any material upon which they might have relied in facing the allegations contained in the Summons was material which they had available to them when the Summons was originally drafted and which, in all prudence, they ought to have retained with a view to future proceedings. Similarly, all information with regard to the allegations made against them could have been obtained from potential witnesses at that time, since they were then given notice of the matters which were to be raised. With some hesitation therefore I allow the Record to be amended in terms of the Minute of Amendment and Answers. I also award the expenses of the amendment procedure to the defenders. In that event it was not disputed that the appropriate course of action was to allow a proof before answer.