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OUTER HOUSE, COURT OF SESSION
[2021] CSOH 77
CA122/19
OPINION OF LADY WOLFFE
In the cause
APCOA PARKING (UK) LIMITED
Pursuer
against
CROSSLANDS PROPERTIES LIMITED
Defender
Pursuer: Howie QC; Brodies LLP
Defender: Borland QC et Manson; Pinsent Mason LLP
30 July 2021
Background
The car park
[1]
This is a further litigation between the parties arising out of the state of a three-level
multi-storey car park ("the car park") at the Kingsgate Shopping Centre ("the Centre") in
Dunfermline. The Centre was built in 1985 and renovated in 2002. In around 2008 the
Centre was extended to the east to provide new retail units and the car park above those
units.
[2]
Since its completion in 2008 the car park, owned by the defender and operated by the
pursuer under a licence, has been beset with problems. These have included ponding of
2
water at level 3, spalling (or the break-up) of the concrete surface over areas of level 3, the
failure of a waterproof membrane over part of level 3 (resulting in leaks into the retail unit
below), wide-spread cracking of the surfaces of levels 1 and 2, and corrosion to some of the
steel stanchions which support the undersides of levels 2 and 3. These problems have
spawned prior litigations, an extensive programme of remedial works to all levels (although
only those for level 3 were undertaken) and a prolonged dispute between the parties. Since
the remedial works, the defender has issued two repair notices to the pursuer, seeking to
hold the pursuer liable in terms of its repairing obligations to undertake the works they
specified. The pursuer maintains it is not liable for what it contends are defects of design or
workmanship in the original construction and now seeks to be relieved of any future
obligations in respect of the car park.
The central issue in this case
[3]
The order the pursuer seeks in this action is relatively unusual. The pursuer does not
seek damages or to enforce any term of the Agreement by specific implement. The pursuer
maintains that the defects it alleges are such that, collectively or individually, the defender is
in material breach of its contractual obligations (noted in the next paragraph), with the result
that the pursuer is now entitled to rescind the contract. It has raised the present proceedings
and seeks declarator to that effect. The pursuer alleges seven separate defects of design or
workmanship, noted below (at para [41]).
The pursuer's assertion of the defender's breaches of their contract
[4]
The pursuer asserts breaches of clauses 2.4 and 3.1 of the parties' agreement (as
after-noted, in paras [5] ff). Read short, these clauses obliged the defender
3
1) to use all reasonable endeavours to procure that the building contractor performs
its obligations under the building contract (clause 2.4), and
2) to procure inter alia the completion of the car park "in a good and workmanlike
manner using all due diligence, and using the material specified in the Agreed
Plans and Specification failing which with good quality materials" and also to
comply with the requisite consents, codes, British Standards and certain
construction regulations (clause 3.1).
The Agreement
The construction of the car park and the terms of the lease
[5]
In advance of the construction of the car park, the parties entered into an
"Agreement for a Lease" (referred to in much of the documentation as "the AfL" (but which
is referred to in this opinion simply as "the Agreement")), by missives dated 11 October and
5 November 2007. In terms of the Agreement, the defender would procure the construction
of the car park (which it did in 2008), and which the pursuer, who are well-known operators
of car parks, would occupy and operate under a 25-year lease (in the form of the draft lease
appended as annex 6 to the Agreement).
The tenant's input at the stage of construction
[6]
The tenant's obligations are set out in Part V of the Schedule to the draft lease
appended to the Agreement (respectively, "Part V" and "the lease"). In terms of
paragraph 3 of Part V, the pursuer as tenant would, other than for insured risks, assume
onerous obligations to repair, reinstate and renew the car park for the duration of the
25-year period envisaged in the lease "irrespective of the cause of damage". (The terms of
4
the tenant's repairing obligations are set out in para [10], below.) Those prospective
obligations provided the pursuer with an acute commercial interest to ensure that the car
park was built to the requisite standard. Putting it another way, the risk inherent in an
onerous repairing obligation of 25 years for a newly constructed car park with a design life
of 50 years is likely to be materially lower than a like obligation assumed for a 20-year old
car park. The pursuer's ability to mitigate that risk was reflected in the structure of the
Agreement. It contained detailed provisions, including those stipulating the design for the
car park in the form of a "Shell & Core Specification Car parking Levels" contained in
annexation 1 to the Agreement ("the Specification"), and requiring compliance with certain
standards and guidance applicable to car park construction (per paragraph 2.2 of the
Specification). (Annexation 9 appeared to contain a duplicate of the Specification but at the
proof reference was made only to the version in annexation 1.) In addition to imposing
"construction obligations" on the defender (per heading to clause 3, albeit the scope of those
obligations is disputed), the Agreement conferred certain rights on the tenant to monitor the
construction works (under clause 4). Clause 5 also entitled the tenant to access and inspect
the works at key points, including prior to the issue of certificates for practical completion
and for the making good of defects (see clauses 5.1 and 5.2).
The effect of practical completion
[7]
There was additional provision for a dispute resolution mechanism in respect of such
matters (in clause 5.3). These were important rights because, once "properly issued", the
certificate of practical completion was (subject to the dispute mechanism in clause 5.3) "final
and binding" on the parties (per clause 5.6). The practical effect of that provision was to
activate the tenant's risk under the repairing obligation.
5
The collateral warranties in favour of the tenant
[8]
Another feature of the Agreement affecting the allocation of risk was the ten ant's
entitlement to collateral warranties (under clause 9) from the design team and building
contractors (the latter, Mivan Limited ("Mivan"), are now insolvent), and the obligation on
the defender to "use all reasonable endeavours to procure that the Building Contractor
makes good all defects" brought to its notice during the defects liability period (under
clause 9.2). The defender was relieved of any obligation to compensate the pursuer for any
disruption or lost profits arising from the contractor making good any defects.
The obligations incumbent upon the pursuer as occupier
[9]
No lease has been entered into pursuant to the Agreement. The pursuer occupies the
car park under a licence, which, by virtue of a deeming provision in clause 12.1 of the
Agreement, imposes like obligations inter alia for repair and maintenance as would be
imposed in terms of the lease. (For ease of reference, I will refer to the provisions of the
lease directly, without also noting the deeming provision.) The defender relies on clause 2
of the lease, to the effect that the pursuer as tenant has accepted:
"...the Premises...and which Premises and the Common Parts the Tenant accepts in
good and substantial repair and condition and suitable and fit for their purposes in
all respects..."
The definition of the term "Premises" (in Schedule Part I of the lease) effectively comprised
the car park, including
"the floor of each level of the said car park extending from the underside of any
membrane or surface treatments on the floor of each level of the said car park to
the upper side of the tarmac on the said floors...waterproofing and other applied
membranes..."
6
The defender contends that the pursuer, as tenant, accepted that the "Premises" were in
good and substantial repair and condition, and suitable and fit for purpose in all respects,
and is thereby barred from raising in these proceedings any disconformity with the
specification or design guidance relating to the car park.
The pursuer's repairing obligations under the lease
[10]
By virtue of clause 3.1 of the lease, the pursuer, was as the tenant, obliged to
"implement, perform and fulfil the obligations and undertakings set out in Schedule
Part V". Schedule Part V of the lease set out the tenant's obligations, including paragraph 3,
in the following terms:
"At the Tenant's expense well and substantially to repair, maintain, decorate,
cleanse, glaze (and where necessary) rebuild, reinstate and renew and generally
in all respects keep in good and substantial repair and condition the Premises
and every part thereof irrespective of the cause of the damage causing such repair,
maintenance, renewal or others, BUT excepting always from the foregoing
responsibility damage to any item caused by the occurrence of one of the Insured
Risks (save where and only to the extent that the insurance monies are rendered
irrecoverable in consequence of any act, neglect or default of the Tenant or anyone
for whom the Tenant is legally responsible and the Tenant has not made good the
same)". (Emphasis added.)
I shall refer to these obligations as "the tenant's repairing obligations". The defender relies
on the wording emphasised above and submits that in terms of clause 2 of the lease, the
pursuer accepted "the Premises" (which included the floors, waterproofing and membranes
at each level of the car park) as being in good and substantial repair and conditions. The
defender notes that the tenant's repairing obligations incumbent upon the pursuer applies
"irrespective of the cause of the damage causing such repair, maintenance, renewal or
others". It maintains that the work necessary to comply with this obligation (as detailed in
7
the repair notices, after-mentioned in paras [14] and [15]) must be carried out at the
pursuer's expense.
The Specification
[11]
As one of the issues is as to the extent of waterproofing required, it is convenient to
set out the applicable term, being paragraph 3.9 of the Specification, which provided:
"Waterproofing is provided at the following levels with the use of a proprietary
liquid applied membrane, Procor 3, forming part of the composite concrete floor slab:
`Car park level 1 - membrane applied throughout entire area.
`Car park level 2 - no membrane.
`Car park level 3 - membrane applied as part of composite floor over the area of the
anchor store back of house areas. A surface applied proprietary waterproofing finish
is applied over the balance of area at this level".
The "anchor store back of house area", situated on level 2, was variously referred to in the
evidence as "the retail area" or "the insulated area" (I shall adopt the later term) and which
was occupied by Debenhams.
The earlier litigations
[12]
In an earlier action, raised in February 2014, the owner of the car park (the defender
in the present action), sought to hold its tenant or licensee (the pursuer in the present action)
liable for certain repairs to level 3 of the car park on the basis of repairing obligations said to
be incumbent upon it ("the Crosslands Action"). This followed a notice of repair setting out
the matters the defender identified as in need of remediation. This prompted the pursuer to
raise a counterclaim in February 2015, contending that the repairs were only necessary
because of Crosslands' failure to procure a car park constructed in accordance with the
requirements of the Agreement ("the APCOA Action"). By the time of the debate the car
park was in a state of disrepair. The waterproof coating on the top deck (also referred to as
8
"level 3" or "the roof"), which is exposed to the elements, had failed. The concrete, or the
waterproof membrane that was integral to a section of it, had broken down at several
locations. That in turn has led to water penetrating down through the insulated area into
the retail unit below.
[13]
In those proceedings Crosslands maintained that the extent of its obligation had been
to procure a competent design team but that otherwise it bore no liability for the state of the
car park. After debate in those actions (reported at [2016] CSOH 63), Lord Woolman
rejected Crosslands' contention. Thereafter, Crosslands accepted it was responsible for
certain repairs to the car park and it abandoned the Crosslands Action. The APCOA Action
did not proceed further. (As noted below, the pursuer submits that one of the defender's
arguments is simply a reformulation of the one rejected by Lord Woolman, and which
should similarly be rejected.)
The 2018 and 2020 Repair Notices
The 2018 Repair Notice
[14]
Some months after the remedial works to level 3 were said to have been completed,
the defender served a repair notice on the pursuer detailing works required to levels 1 and 2
and the ramps of the car park ("the 2018 Repair Notice"). The required works included:
(1)
investigation and installation of durable water seals to all movement joints;
(2)
repairing all cracks wider than 1mm with an epoxy resin;
(3)
installation of a high performance elastomeric waterproof coating to the tops of
levels 1 and 2 (and sealing any cracks less than 1mm, if the manufacturer of the
waterproofing product recommended this); and
(4)
installation of an impressed cathodic protection system.
9
While items (1) to (3) are self-explanatory, item (4) is designed to address the risk of
corrosion to any reinforcing steel (embedded into concrete) that might be caused or
exacerbated by water (and corrosive water-soluble substances) penetrating the concrete via
the cracks. There was minimal evidence about the costs of undertaking these works, though
in evidence the figure of more than £200,00as elicited as the cost of installing a cathodic
protection system at each of levels 2 and 3 (item (4), and which is intended to address the
corrosion risk arising from alleged defect 5 (defined in para [41], below). The pursuer does
not accept it is liable for those repairs. It also contends that the remedial wor ks undertaken
to level 3 were deficient or did not conform to the Specification.
The 2020 Repair Notice
[15]
The defender served a further repair notice in 2020 ("the 2020 Repair Notice") during
the currency of this action, essentially repeating item (2) from the 2018 Repair Notice, but
now requiring that all shrinkage cracks with widths between 0.3mm and up to 9mm be filled
with an epoxy resin treatment.
[16]
It was clear from the evidence of the pursuer's Graham Tidball that, given the issues
with the car park and notwithstanding the resultant remedial works, the service of the
Repair Notices led the pursuer to conclude that "enough was enough". It raised the present
proceedings whose primary purpose is to relieve the pursuer from its future obligations
under the lease.
The defender's concession relative to the 2018 and 2020 Repair Notices
[17]
As noted below, the defender's two experts, Mr Davis and Prof Robery, spoke to the
good condition of the car park. This was particularly so of Prof Robery, who described
10
being "impressed" by the condition of the car park (which he inspected in April 2021) and of
it being in very good condition. He rejected the suggestions in respect of levels 1 and 2, that
the cracking was out of the ordinary or posed any enhanced risk to the integrity of the car
park, or that a cathodic protection was required to be installed. (Mr Davis shared the view
that a cathodic protection system was unnecessary: Davis 3 at paragraph 5.12.) This
evidence was wholly inconsistent with the Repair Notices. This did raise a certain tension
for the defender: to the extent that it asserted in the Repair Notices that the car park was
deficient (and not attributable to any failure in a maintenance obligation owed by the
pursuer), this could be seen as assisting the pursuer's position on the merits of its case that
the car park was beset with material defects for which it was not responsible. In the course
of the defender's submissions, I raised this inconsistency with the defender's Senior
Counsel, Mr Borland QC, who, after taking instructions, advised that the defender withdrew
both the 2018 and the 2020 Repair Notices in their entirety and accepted that the works
therein specified would not be required of the pursuer ("the defender's concession").
Concrete as a material
[18]
In order to understand the alleged defects (set out at para [41]) and the evidence of
the parties' experts, it is necessary to understand the different layers that comprise the deck
of each level of the car park, as each has a different method of construction. Before doing so,
it is also helpful to have an understanding of the properties of concrete, as this is the
principal material (in various forms) used in the construction of the decks of the car park.
11
Cast concrete
[19]
In construction works, concrete that is pre-formed (ie pre-cast) in rectangular slabs
may be used. In its wet form, concrete may also be poured in situ or "cast". If cast, the
formation of concrete is a wet process. Cast concrete acquires strength and rigidity as it
dries or "cures". Curing is a process of evaporation which must be controlled to minimise
the formation of cracks (all concrete cracks to a certain extent as it cures) and to maximise
the strength of the cured concrete.
The use of a reinforcing steel mesh in cast concrete
[20]
As noted below, concrete was used for two distinct layers in each deck. In each
deck's uppermost layer (which was variously described as "the wearing course" or "waring
screed", or "floating screed" or "the topping", and which I shall refer to as "the wearing
screed"), a reinforcing steel fabric or mesh (comprised of rectilinear pieces of steel) ("the
reinforcing steel mesh") was embedded in the concrete. The principal purpose of the
reinforcing steel mesh was to control or minimise the amount and depth of early - age or
shrinkage cracking, which is the kind of cracking that occurs in the first 2 years of the life of
the concrete, as the concrete cures. To be effective for that purpose, the reinforcing steel
mesh should not be buried under too thick a layer of concrete (as that would defeat the point
of controlling cracks at the surface of the concrete) or too shallow a layer (as that might
expose the mesh to corrosion from water ingress or water-soluble substances such as
chloride (a common component of de-icing treatments)). Hence the specification of the
permitted thickness of the concrete slab above the reinforcing steel mesh.
12
The occurrence of cracks in concrete
[21]
So far as possible, the formation of cracks in concrete is to be minimised. Cracking
cannot be wholly avoided. In relation to the design of concrete car parks, there is guidance
in the form of a British Standard ("BS") as to the different widths of cracks which may be
tolerated, and the desiderated treatment of these. In terms of the BS applicable at the time of
the construction of the car park, BS8110-1:1997 ("Structural use of concrete Part 1: Code of
Practice for design and construction" (withdrawn in 2010)), the permitted width for
structural cracks under full load was 0.3mm. In relation to non-structural cracking, such as
plastic shrinkage cracking, thermal cracking or long-term drying shrinkage cracking, which
can occur due to non-structural effects (that is, not caused by weight bearing or pressure),
cracks wider than 0.3mm are acceptable. Unless cracks wider than 0.3mm lead directly to
any metal structural reinforcement (such as a reinforcing steel mesh), they are not treated
until the widths are greater than 0.5 to 1.0mm wide. Accordingly, while there were disputes
about the number and sizes of the cracks identified in a survey by Darley of the cracks (or
indeed about the reliability of that survey), in the course of the proof it became common
ground (i) that cracks of 1.0mm or more required to be repaired (by infilling with suitable
material), but (ii) that cracks of a lesser width might be left untreated or, if they were to be
covered by a surface waterproof treatment, a manufacturer might specify the width of
cracks (under 1.0mm) which should be filled prior to such an application.
Cracks as a potential source of risk
[22]
As is clear from the preceding paragraph, not all cracks are indicative of a problem
with the structural integrity or workmanship of a built concrete form. However, much of
the evidence elicited at the proof proceeded on the footing that the existence of cracking can
13
pose a risk to the integrity of the concrete itself (and, ultimately to the structure if this
affected structural concrete). The principal perceived risk was of corrosion of any
embedded reinforcing steel mesh, if it becomes exposed to water. Rust staining on the
surface of concrete can be a sign of corrosion of any reinforcing steel elements.
The potential effect of exposure to water and chloride on steel-reinforced concrete
[23]
Concrete is not impermeable to water. Exposure of concrete to water may have
deleterious effects. The Institution of Structural Engineers ("ISE") "Design Recommendations
for multi-storey and underground car parks" (4
th
ed, 2011) ("the ISE 2011 Recommendations")
states that:
"A frequent factor in premature deterioration is retention of water, either on rough,
textured surfaces or in areas of ponding. Unless there is an effective waterproofing
membrane on the concrete surface (see Section 8.6), ponding water will slowly
penetrate into the concrete surface. As well as increasing the risk of damage due to
freeze-thaw action, the surface water is likely to contain chloride salts from sea spray
or from de-icing salts."
(The passage in the 3
rd
ed., in 2002, is differently worded but to similar effect.) Accordingly,
the design of concrete structures which will be exposed to th e elements over their design life
(such as exposed decks of unroofed or open-sided car parks) must address these effects.
[24]
In respect of the car park, this was sought to be done by two design elements. The
first was the use of a reinforcing steel mesh to try to control the extent, width and depth of
any surface cracking and thereby minimise any water penetration via cracks. The second
was to provide for waterproofing, eg by the provision of a waterproof membrane (in this
case, the Procor 3 membrane), either on the surface of the wearing screed (eg at level 3 as
part of the remedial works), enabling water to flow into channel drains, or as an embedded
layer (eg at level 1), enabling any water that does penetrate into the concrete subsurface to
14
be caught and channelled into sub-surface drains. Where these features are effective, water
does not penetrate through the concrete so as to leak into any area beneath the concrete
structure (as has happened from the insulated area on level 3 into the Debenhams unit or
from level 1 into the DW Sports retail unit) and it does not come into contact with, or
compromise or corrode any reinforcing steel elements.
The different forms of construction of the three levels of the car park
[25]
The car park provide 690 parking spaces and 30 accessible spaces over three levels.
The uppermost level of the car park, level 3, is exposed to the elements. The structure of
the car park is a steel frame, open to the elements at its sides. A different form of deck
construction was specified for each of the three levels. (I shall use the term "deck" to
encompass all of the elements of the level referred to.) It is necessary to understand the
different layers that comprised the deck of each level of the car park.
The level 1 deck
[26]
The lowest stratum of the level 1 deck is a 150mm thick in situ reinforced concrete
slab, specified as Grade RC 35, which is laid over a steel deck flooring ("the level one slab").
(The term "RC 35" is a specification for a particular concrete mix and reflects its
characteristic cube compressive strength.) The next layer is a proprietary waterproofing
membrane, known as "Procor 3", which is affixed to the underside of a 2mm protection
board ("the protection board"). An insulation layer with a depth of 120mm was placed over
the Procor 3 and protection board. The final or top layer was the wearing screed, which was
specified to be 75mm thick and formed of Grade 30 RC concrete reinforced with a steel
mesh. None of these concrete layers was structural.
15
The level 2 deck
[27]
The bottommost layer was comprised of pre-cast pre-stressed 150mm Hollowcore
concrete planks ("the level two slab"). In contrast to the level one slab, this slab was
structural. Again, and in contrast to levels 1 and 3, there was no intermediate Procor 3
waterproofing membrane specified for the level 2 deck. (The absence of a membrane at this
level is not the subject of dispute.) Immediately above the level 2 slab was a 75mm thick
RC 50 concrete topping (ie the wearing screed). This wearing screed was also reinforced
with a steel mesh.
The level 3 deck
[28]
The construction of the level 3 deck differs from that of the decks of either of levels 1
and 2. There were also two different specifications for the level three deck: there was a
higher specification for the area comprising the south east portion of level 3 (this is the
insulated area, defined above at para [11]), as it is immediately above the Debenhams' retail
area. Otherwise, the majority of the level 3 deck had a more basic specification, as it was
simply above level 2 car parking spaces. I describe this larger area first.
The Level 3 deck over the majority of level 3
[29]
The larger part of the level 3 deck was comprised of 150mm precast pre-stressed
Hollowcore concrete planks ("the level 3 slab"). A 75mm RC 30 concrete wearing screed,
also with a form of reinforcing steel mesh, was laid over the level 3 slab. The level 3 deck
was finished with waterproof finish known as Decseal Interdeck. (While the final
specification had been for a product known as Larcote, this change is of no moment.)
16
The level 3 deck over the insulated area of level 3
[30]
The bottom-most layer of the level three deck over the insulated area was comprised
of 75mm solid precast pre-stressed concrete planks. The next layer was 100mm of structural
insulation. Over this was a layer comprised of a Procor 3 waterproof membrane with board
protection. The final, top-most, layer was a 75mm RC 30 concrete wearing screed with the
same reinforcing mesh as specified for the rest of the wearing screed on level 3.
Level 3 falls and drainage
[31]
As there is an issue about ponding (defect 1), it is necessary to note the drainage
arrangements for level 3. For water to flow and drain adequately across a broad expanse,
the falls cannot be too shallow.
[32]
The drainage for level 3 of the car park, which is longer on its east-to-west
orientation than it is north-to-south, is via a series of two ridges, each on an east-west axis
which divide level 3 into thirds. Each ridge sheds water down into two "valleys", one to the
north and one to the south of the ridge. In the middle valley (ie between the two ridges)
there was provision for a sub-surface covered channel running along its length, which
bisected the level 3 deck along an east-west orientation. Surface water reaching the channel
drain was carried down through the structure via rain downpipes. As part of the remedial
works, the channel drain on level 3 was changed to an exposed valley gulley ("the valley
gulley").
17
Interaction with vertical drains
[33]
As noted above, a Procor 3 waterproofing membrane was sandwiched between the
slabs and wearing screeds on level 1 and on the insulated area of level 3. This was intended
to catch any water that penetrated the surface of the wearing screed and to direct it to
vertical drains and connected rain downpipes. The vertical drains had openings, like a
form of simple lattice work, to enable the water to drain. In order to ensure a complete
waterproof seal, any waterproof membrane should be lapped up (per Mr Clarkson) or sealed
with a ring around the vertical drain (per Prof Robery). Ancillary issues in relation to the
drains is whether this detailing was done adequately and whether the drains inspected in
April 2021 were blocked by some broken concrete (per Mr Clarkson) or blocked by
accumulated debris (per Progf Robery).
Other features of the car park
Failure to remove the embedded Procor 3 membrane as part of the remedial works
[34]
As will be seen, one of Mr Clarkson's criticisms was the failure as part of the
remedial works to excavate, remove and replace the buried Procor 3 membrane, which he
asserts is faulty. Rather, the solution adopted at level 3 was to use a different surface-level
proprietary waterproofing system known as "Decseal". On the balance of the evidence, this
has provided a functionally adequate level of waterproofing, as there has been no recurrence
of the substantial water ingress from level 3 into the Debenhams retail unit below.
However, this does not conform to the original Specification.
18
The ramp leading from level 2 to level 3 and its head
[35]
One of the alleged defects is the absence of waterproofing embedded in , or sprayed
onto the surface of, the concrete layer comprising the level ramp leading from level 2 to
level 3 ("the level 3 ramp"). The allegation extends to the area at the top of the ramp (its
"head" or turning circle), which is also said to be lacking waterproofing. In submissions,
Mr Howie QC, who appeared on behalf of the pursuer, abandoned defect 3, at least insofar
as it related to the level 3 ramp.
The structural or expansion joints
[36]
Alleged defect 7 and part of defect 1 concern expansion or structural joints (also
referred to as "movement" joints). Part of the allegation in defect 1 appeared to relate to a
movement joint (also referred to as a "SABA" joint) adjacent to the insulated area on level 3.
Defect 7 concerned the expansion joint, running on a north-south axis, which bisects the car
park. In particular, it is alleged that a section of this was worn.
The remedial works
[37]
After the abandonment of the Crosslands Action, the defender commissioned
engineers (W J Marshall ("WJM")) to investigate the nature and extent of any remedial
works required to the car park. The defender commissioned another firm ("Condell") to
produce a specification for remedial works in the light of those investigations. Another firm
(Volkerlaser) executed those works under the supervision of Condell. The remedial works
undertaken in respect of level 3 were carried out over two phases (the first in 2017; and the
second in 2018). The Volkerlaser works secured the removal and replacement of all
19
sub-standard concrete on level 3. The other remedial works undertaken at level 3 included
the following:
1)
Removal and replacement of the concrete over the insulated area;
2)
Removal of the channel drainage and replacing it with concrete graded to the
valley gulley; and
3)
Application of a fully reinforced Decseal waterproofing system over the whole of
level 3.
Inherent in defect 1 is the proposition (advanced principally by Mr Clarkson) that as built, or
as remediated, level 3 of the car park failed to conform with the Specification, either because
two levels of waterproofing were required over the whole of level 3, or because the Decseal
product was not originally specified or equivalent to the Procor 3 membrane. It is therefore
necessary to describe the Decseal product.
Decseal
[38]
In terms of the Decseal product literature, this is a proprietary product intended to
be installed as a "system" with different components, and for which the surface-level
application is a simply a finish. The surface-level Decseal is not itself intended by the
manufacturer to be a stand-alone waterproofing treatment. The defender's position,
supported by their experts, is that nonetheless this is sufficiently effective and supersedes
the Procor 3 membrane (which has been left in situ) where applied at level 3. The pursuer's
position is that the Procor 3 membrane is necessarily defective (because a well-performing
system would not have permitted leaks) and should have been replaced.
20
The parties' positions in outline in respect of the alleged defects
The pursuer's case in outline
[39]
The pursuer's essential position is that it expected to occupy and operate a new car
park built to an agreed specification, and which it would reasonably expect to be free of
defects. This was material, given the onerous repairing obligations assumed by the tenant
under the lease. It avers that, as a consequence of the defect it alleges, the car park is
"radically defective" (see Article 5 of Condescendence). The pursuer contends that the basis
of the Agreement has been radically altered and the prejudice to the pursuer is such that it is
justified in rescinding the Agreement. The pursuer argues that in this case damages would
be wholly inadequate. The defender is in insolvent liquidation, and any decree the pursuer
may establish against it for breach of the Agreement is unlikely to be satisfied. Further, if
the pursuer is not relieved of the tenant's repairing obligations, it could be compelled to put
right the defects in the car park, notwithstanding that (on its case) these defects arose from
the defender's breach. Nor does the pursuer have recourse against the contractor
undertaking the remedial works, as, in contrast to the pursuer's entitlement to collateral
warranties for the original construction, no collateral warranties were provided to the
pursuer by the contactors involved in the remedial works.
[40]
For these reasons the pursuer seeks to rescind the Agreement and be relieved of any
future obligations under the lease by reason of the defender's alleged breaches of clauses 2.4
and 3.1 (summarised at para [4], above). The defects in the car park it alleges are noted in
the next paragraph.
21
The alleged defects
[41]
The summons details the variety of ways in which it is said the car park is defective,
either as constructed or as a consequence of the remedial works themselves being
inadequate or incomplete. Parties agreed that the defects the pursuer alleges may be
summarised as follows:
1)
The pursuer alleges that the defective buried Procor 3 membrane at level 3 of
the car park was not repaired. The replacement Decseal waterproofing and
expansion joint (also referred to as "the SABA" joint) to be installed by the
defender to address the defects present in level 3 do not meet the requirement
of the Agreement ("defect 1");
2)
The pursuer contends that there is ponding on level 3 of the car park, and that
this is being caused by a failure to provide the necessary falls or gradients to
allow the water to reach the drainage gullies ("defect 2");
3)
The pursuer argues that there is no functional waterproof membrane layer over
the level 3 ramp or third level area at the top of the ramp ("defect 3");
4)
The pursuer contends that there is corrosion to steelwork on the underside of
levels 2 and 3 of the car park ("defect 4");
5)
The pursuer alleges that there is cracking in the concrete `topping' at levels 1
and 2 of the car park ("defect 5");
6)
The pursuer argues that the substrate Procor 3 waterproofing membrane
installed as part of the construction at level 1, and the sub-slab drainage at level 1,
are defective ("defect 6"); and
22
7)
The pursuer contends that the defender has failed to complete the structural or
movement joint (also referred to as "the Radflex joint") adjacent to the car park
office ("defect 7").
[42]
Furthermore, the pursuer contends that the defender
1)
refuses to carry out such work as is required to put level 3 into the state which
it ought to have been in consistent with the terms of the Agreement;
2)
refuses to carry out any of the works to the other areas of the car park as are
required to put them in the state which they ought to have been in consistent
with the terms of the Agreement; and
3)
maintains that the defender is liable to carry out and pay for all further works
necessary to put and keep the car park into good and substantial repair.
As a consequence of the foregoing, the pursuer contends that the defender has provided a
radically defective car park which is likely to require substantial and ongoing repair works
at the expense of the pursuer, during the execution of which the car park may not effectively
be used as such in whole or in part. This, in short, was not the performance expected or
required of the pursuer in terms of the Agreement. This goes to the root of the Agreement,
entitling the pursuer to rescind.
The defender's position in outline
[43]
The defender admits that at the stage of initial construction a waterproof membrane
had not been installed over all areas of the top (or level 3) of the car park, nor on the ramp
leading to level 3 or the head of the ramp. The defender notes that it has expended
considerable resources in attending to level 3 since the time of the pursuer's occupation and
it relies on the remedial works undertaken. It contends that, as a consequence of the
23
remedial works, a waterproof membrane is now in place at level 3, where required, and
which is covered by a 10 year guarantee. It maintains that the car park is functional. It is
capable of being occupied and operated by the pursuer.
Outline of defender's reply to the pursuer's seven specific defects
[44]
In light of the foregoing, the defender's reply to the pursuer's individual criticisms
(noted at para [41], above), are:
1)
That whatever the state of the proprietary "Procor 3" waterproofing membrane
at level 3 of the car park as initially constructed, any defect was resolved by the
application of Decseal waterproofing overlaid on top of the concrete wearing
screed as part of the remedial works. The Decseal waterproofing functions well
and renders the Procor 3 membrane otiose in all material respects. It was not
necessary to remove or repair the Procor Membrane 3 itself. There have been no
reported leaks since the installation of the Decseal membrane. It has also
installed the requisite expansion joint.
2)
There is no serious ponding at level 3, or any substantial part of it, such as to
render the car park unusable or to pose any health and safety risk to pedestrians
or cars. Any ponding of the type condescended upon by the pursuer is a
function of inadequate maintenance on the part of the pursuer. The pursuer had
confirmed that it would attend to the maintenance necessary to avoid ponding.
The relevant areas are served by a new drainage system installed during the
Volkerlaser works which the defender put in place and paid for. Any inadequate
falls or gradient (ie to enable water to drain), or any resultant ponding as a
consequence of inadequate falls, is de minimis.
24
3)
Properly construed, there is no contractual requirement for a functional
waterproof membrane layer over the Level 3 ramp or third level area at the top
of the ramp.
4)
The remedial works have resolved any issue involving corrosion to the steelwork
on the underside of levels 2 and 3 of the car park.
5)
Any cracking in the concrete wearing screed at levels 1 and 2 of the car park is
not structural but is hairline cracking calling only for patch repairs. It is not an
extensive problem (if it is a problem at all). The relevant category of repair falls
within the scope of the pursuer's obligations and responsibilities under the
Agreement.
6)
There is no current evidence that the Procor 3 membrane at level 1 is leaking or
defective, or that the sub-surface drainage isn't operating as it should.
7)
This is a modest repair, at best. While there is a temporary fitting, the defender's
intention is for this to be replaced by a permanent expansion joint.
The defender's allegations of the pursuer's failures
[45]
The defender also alleges that some of the problems have arisen by reason of the
pursuer's failures, eg to maintain and clean the gullies and drainage systems at level 3, or its
inappropriate use of salt as a de-icing agent in the winter.
The defender's case of personal bar
[46]
The defender also contends that the pursuer is precluded from asserting material
breach. Its averments are as follows:
25
"The pursuer has occupied and operated the car park since 2008. It was aware of
the items complained about in connection with the third floor since that time. It has
complained about the first and second floors since 2016. The parties have been
engaged in various litigations concerned with the pursuer's position in connection
with the condition of the car park. The pursuer has never before asserted that it
considers the defender to be in material breach. The pursuer has not withheld
performance of its own material obligations under the Agreement i.e. operation of
the car park and payment of rent. The defender has therefore proceeded on the basis
that it is not being held in material breach of contract. It has expended considerable
resources both in terms of time and money in engaging with the pursuer over its
complaints and effecting certain works at the car park. It has done so on the footing
that it was not being held in material breach. The pursuer has represented to the
defender by its conduct that material breach is not alleged. The defender has relied
and acted upon the same. Its actings were caused by the pursuer's conduct and the
defender would not have so acted absent that conduct. The defender has been
prejudiced by the conduct of the pursuer and the defender's reliance upon the same.
The pursuer is personally barred from now asserting that the defender is in material
breach.
Any right to rescind which the pursuer seeks to establish has been lost by the
effluxion of time. The pursuer did not seek to exercise the purported right within a
reasonable period of time. This is despite the background of complaint in connection
with the car park running back to 2008, some eleven twelve years ago."
The pursuer's response to the defender's pela of personal bar or the timing of its case
[47]
The pursuer rejects the defenders' pleas that by reason of personal bar or the passage
of time that it is precluded from advancing its case. Until the receipt of the 2018 Repair
Notice, in late 2018, it had not been aware of the defender's position that there were such
defects or of its intention to hold the pursuer responsible for their remediation. This action
was raised in August 2019 and first called in Court on 10 September 2019.
Ancillary issues relative to the alleged defects
[48]
Two ancillary issues emerged in the evidence. It is convenient to note them,
although I consider the implication of these more fully when I address the defects to which
they relate.
26
Maintenance issues said to affect drainage
[49]
The first was the question of maintenance. Parties linked this to the issue of ponding
(defect 2). The defender produced photographs, principally of level 3, showing vegetation
growing in the cracks at the edges of the level 3 deck, accumulated debris in some of the
corners (including the remains of a seagull) and some silting of surface drainage. As one of
the higher elevated areas in Dunfermline, level 3 of the car park attracts seagulls during the
nesting season. They are protected during that season, and may not be removed or
disturbed.
Inappropriate use of de-icing salt
[50]
The second ancillary issue arises from the high level of chloride noted in WJM's letter
of advice, dated 3 November 2016 ("the 2016 WJM Letter"). The defender's position is that
the chloride is due to the pursuer's staff using de-icing salts. Guidance for car parks
recommends against the use of de-icing agents with a significant chloride content in concrete
structures, such as car parks. The reason is because the chloride element within such
materials can be deleterious to concrete, especially if it penetrates and reaches any
reinforcing steel structure which may corrode and diminish the integrity of the concrete
itself.
[51]
This was touched on lightly in the evidence. The defender produced statements
from two former employees of the pursuer, who had both been employed as car park
managers. They were not cross-examined and their evidence was comprised of their
unchallenged statements. In those, they both speak to using salt regularly at all levels for a
number of years. The pursuer did not lead any witness who had experience of the operation
27
of the car park, or the practice of salting at that time. Gary Anderson, one of the pursuer's
witnesses to fact, joined the pursuer only in 2016 and he could not speak to the pursuer's
practice prior to that time. He acknowledged that there were purchase orders for salt. This
issue is relevant to defect 5 (the cracking in the wearing screed at levels 1 and 2).
Documentation produced for the proof
[52]
The documentation produced for the proof was extensive. The core bundle,
comprising the pleadings, key productions and 19 witness statements (omitting the
statements from the three witnesses not led at proof) and 11 expert reports and
supplementary reports, extends to over 1,800 pages. The joint bundle contains more
than 3,000 additional pages. I have considered these materials, to the extent they were
referred to by the parties' witnesses or in the many expert reports or in evidence at the
proof. I was referred to additional materials, namely Neil Clarkson's first report and several
master plans, which were omitted from the core and joint bundles. The parties' experts'
evidence comprised the major part of the parole evidence elicited at proof. It will assist if I
note first the technical or other materials referred to by one or more of the parties' experts in
their evidence, and then identify the reports produced by each party (see paras [64]
and [65]).
Key investigations and reports
Technical reports
[53]
From about 2010 until the conclusion of the remedial works in 2018, numerous tests
and investigations relative to the car park have been commissioned from a variety of
entities. These included taking core samples to check the depth of the various strata of
28
which the different levels of the car park were composed and the compressive strength of
the concrete; testing for the presence of chlorides (the presence of high concentrations of
which may lead to carbonation or corrosion of embedded reinforcing steel), analysing water
bonding and ratios, and surveying of surface-level cracking. Many of these reports are
referenced in, or appended to, one or more of the experts' reports. Parties' positions have
also evolved, as new issues emerged and existing ones were developed or abandoned, and
this is also reflected in the multiple expert reports produced. (Later reports respond to
reports by the other party's experts. Final, consolidated reports were not produced.)
Extensive reference was made to these earlier technical investigations in the expert reports.
However, the vast majority of these technical reports are either irrelevant to the issues in this
case (as focused in the seven defects (see para [41]), or otherwise have been superseded by
the remedial works. I do not propose to record these. Parties declined the invitation of the
Court to try to agree the few which appeared relevant. Accordingly, I summarise in the next
paragraph the key matters for which the technical reports were cited.
Key matters for which technical reports cited
[54]
The technical reports which were cited for the more limited purposes of asserting, in
respect of the uppermost concrete layer (or wearing screed):
1)
that the chloride levels were high;
2)
that carbonation was present or potentially active; and
3)
that there was excessive cracking in the surfaces of levels 1 and 2.
[55]
In support of those propositions, the following reports were referred to:
1)
Charles Darley Associates Ltd ("Darley"): Darley are a specialist investigations
and materials testing consultancy. They were commissioned to undertake testing
29
in respect of a variety of issues in December 2014, September 2016, January and
April 2017 (eg on compressive strength, carbonation etc). The only document of
theirs relevant to the issues in this case is their survey mapping the extent of
cracking on levels 1 and 2 of the car park (referred to by some of the witnesses as
"the crack maps"). I shall describe these further below, and the comments made
by other witnesses.
2)
Henderson Thomas Associates ("HTA") produced a report in 2019 recording the
chloride ion content of the concrete at Levels 1, 2 and 3;
3)
William J Marshall & Partners ("WJM") and Kishan de Silva: Mr Kishan de Silva
was the principal author of the 2016 WJM Letter, produced following a visual
examination and a review of the test data obtained by others. WJM were
instructed to express their views of the car park and on the appropriate remedial
works, which they did, albeit in tentative terms as they had not seen all of the
documentation they would have expected. In brief, they concluded:
i)
that the condition of the wearing screed of levels 1 and 2 showed no
evidence of spalling, that cracks were widespread and their width ranged
between 5mm and 3.5mm; and that rust staining was found at only one
location;
ii)
that, while there was carbonation (a process by which acidic gases, such
as atmospheric carbon dioxide, progressively reduce the alkalinity of the
concrete from surface level down towards the reinforcement), this had not
reached a stage which enhanced the risk of corrosion to the steel
reinforcement; and
30
iii)
in respect of the presence of chlorides (which can support corrosion of the
steel reinforcement, once the chloride level at the reinforcement exceeds a
threshold level), in light of the chloride levels in the concrete wearing slab
(as disclosed in one of the Darley tests in 2014), WJM concluded that the
risk of corrosion initialisation was high or extremely high in the wearing
screed at levels 1 and 2, but negligible or low at level 3; and that in origin
the chloride was likely to have been from ingress (rather than created at
the time the concrete was cast). WJM noted that the diminution in the
chloride levels as one ascended through the car park could be explained
by vehicles shedding highway de-icing salts at lower levels of the car park
and by the closure from time to time of level 3.
The pursuer's concession
[56]
While the pursuer's case in respect of defect 3 had been predicated on showing there
being a disconformity of the car park as built, when compared to the Specification or final
design at the point of construction (and for which purpose, a number of plans and other
documentation were examined to ascertain the final iteration of the design at the point of
construction), at the stage of submissions the defender's senior counsel abandoned most of
its case on defect 3. I therefore do not set out this evidence.
Comment on the Darley crack maps
[57]
As noted above (at para [55(1)]), Darley undertook a survey of the cracking on
levels 1 and 2 which it depicted its findings using thick lines in yellow and red on two plans
("the Darley crack maps"), produced as part of its report from 2016. The cracks shown on
31
the Darley crack map of level 2 were broadly on a horizontal, or east-west axis and
predominantly coloured yellow. There were more cracks depicted on the level 1 crack map
and the pattern of cracking was much more irregular. Again, these were predominantly
coloured yellow. For his part, Prof Roberts relied on the Darley crack maps, as at the time of
his site visit these levels of the car park were relatively full.
[58]
Mr Clarkson relied on the Darley crack maps and reproduced them as his appendix 5
to his second report. (No other part of that Darley report was produced and no key was
provided in Mr Clarkson's report or discernible on the Darley crack maps themselves.)
Mr Clarkson states (in his second report, at paragraph 9.1.1) that he undertook a visual
survey which concurred with the Darley crack maps.
[59]
One of the pursuer's witnesses, Mr de Silva, who held professional qualifications but
not led as an expert, commented that the Darley crack maps could be misleading, if glanced
at quickly and without reference to any key, as the lines were crudely drawn and depicted
with too thick a crayon or marker. In particular, none of the cracks at levels 1 or 2 would
correspond to the width of the red or yellow lines as depicted on the crack, if taken at scale.
[60]
Prof Robery undertook his own survey of each level of the car park and of the ramps,
which he records in his second report. From that survey he concluded that the Darley crack
maps were unreliable. By contrast, Prof Roberts had not checked the accuracy of the Darley
crack maps and he could not gainsay Prof Robery's evidence that there were only two cracks
with a width of greater than 1mm. From his own examination, Mr Davis also formed the
view that the Darley crack maps exaggerated the number and width of the cracks, and were
unreliable. Darley's widths were "overstated" because they measured the width at the
surface, but that was affected by fretting (ie breakdown at the edges at surface level due to
pressure) (Davis 4 at paragraph 3.18). Mr Davis measured the depths of some of the cracks
32
with a crack microscope and found that they were narrower at depth (Davis 2 at
paragraph 3.8(d)). Prof Robery made comments to the same effect, that measurement of
the surface width of the cracks, as Darley had done, was "deceptive". He had found that
most of the cracks he inspected were less than 0.5mm at the time of his first inspection
(Robery 1, Table at 5.2, row 4).
[61]
He noted, too, that Darley had recorded construction joints as cracks (see Davis 2 at
paragraph 3.8(c)), but these were more properly understood as physical discontinuities
deliberately introduced as part of the construction process (ibid, at paragraph 4.12). Further,
the construction joints recorded by Darley as cracks did not appear to be as wide as recorded
by Darley (ibid at paragraph 3.8(c)).
[62]
Mr Davis also noted that, while Darley had commonly recorded these as more
than 1.0 mm wide, he had been unable to confirm this. Those joints were visible but had not
opened up unduly. Many of the cracks were in parking bays; were less than 0.5mm, and
were difficult to see. Cracks of this size were within the normal range expected in reinforced
concrete structures.
The parties' experts' reports
The pursuer's experts' reports
[63]
As noted above, each party led two experts who, collectively, produced 11 reports.
[64]
The pursuer's experts reports were as follows:
1)
Report of Neil Clarkson, dated 11 February 2020 ("Clarkson 1");
2)
Supplementary Report of Neil Clarkson, dated 28 April 2020 ("Clarkson 2");
3)
Second Supplementary Report of Neil Clarkson, dated 14 April 2021
("Clarkson 3") (allowed late, but under deletion of Part V);
33
4)
Report of Prof John Roberts, dated 9 June 2020 ("Roberts 1"); and
5)
Supplementary Report of Prof John Roberts, dated 12 April 2021 ("Roberts 2").
Shortly before the diet of proof set down in June 2020, the defender lodged two notes
of objections. (That proof was discharged inter alia for receipt of a report for a then
newly-instructed expert for the pursuer, Prof Roberts, and for receipt of a report from the
defender's second expert, Prof Robery.)
The defender's experts' reports
[65]
The defender's experts and their reports are as follows:
1)
Expert Report of Matthew Davis, dated 27 February 2020 ("Davis 1");
2)
Supplementary Report of Matthew Davis, dated 28 April 2020 ("Davis 2");
3)
Third Report of Matthew Davis, dated 9 June 2020 ("Davis 3");
4)
Fourth Report of Matthew Davis, dated May 2021 ("Davis 4");
5)
Expert Report of Prof Peter Robery, dated 28 August 2020 ("Robery 1"); and
6)
Supplementary Expert Report of Prof Peter Robery, dated 17 May 2021
("Robery 2").
Other technical standards or guidance
[66]
Parties' experts and the other professionals involved also referred to published
guidance concerning the construction and maintenance of multi-storey car parks which
are open to the elements. It suffices to note the following:
1)
The Institution of Structural Engineers ("ISE"), Design recommendations
for multi-storey and underground car parks (Fourth edition) March 2011
34
("the 2011 ISE Design Recommendations"). The third edition was in 2002
("the 2002 ISE Design Recommendations"); and
2)
Institution of Civil Engineers ("ICE"), Recommendations for the inspection,
maintenance and management of car park structures, 1
st
ed 2002 ("2002 ICE
Recommendations").
Item (1) was referred to for passages about design as it affects cracking and crack width on
concrete and the effect on concrete of exposure to chlorides. The 2002 ISE Design
Recommendations, being the version in force at the time of the construction of the car park,
was replaced by an edition in 2010. Reference was made to both, but, while the wording of
the passages differed as between the 2002 and 2010 editions, the import was essentially the
same. Item (2) was referred to by Prof Robery in support of the proposition that it was good
practice for operators of car parks to prepare a "Life Care Plan" detailing the health, safety
and maintenance requirements for a car park and containing a schedule for routine
maintenance for the duration of its occupation. He saw no evidence that the pursuer had
prepared such a plan for the car park. (See Robery 1 at paragraph 6.2.2 and Robery 2 at
paragraph 5.2.3.)
The April 2021 Investigation at level 1
[67]
At a relatively late stage in the litigation a site investigation was arranged at level 1
involving the pursuer's experts, Mr Clarkson and Prof Roberts, and one of the defender's
experts, Prof Robery ("the April 2021 Investigation"). Mr Allan was also in attendance.
[68]
The intrusive investigation on level 1 involved drilling down to remove cores at
three locations (described as "L4", "L5" and "L6"). The principal purpose was to establish
the integrity of the wearing screed and to access the Procor 3 membrane sandwiched
35
between that wearing course and the level 1 slab. It will be recalled that at this level, the
Procor 3 membrane was fixed to the underside of a protective board. The upper surface of
the board was black; the Procor 3 membrane is beige in colour. (The fact that HTA had
identified the membrane as red in one of their earlier reports casts doubt on the findings in
that report.) The Procor 3 membrane was exposed at only one of the locations, namely L4.
This was only possible because the core found a joint in the protection board, which enabled
this to be lifted in order to expose the Procor 3 membrane affixed to its underside.
[69]
The summary comments of those in attendance and the photographs taken were
produced as joint bundle no 193 ("the Note of the April 2021 Investigation"). The Note of
the April 2021 Investigation was prepared in the form of a table, with each of those in
attendance (Mr Clarkson, Prof Roberts, Prof Robery and Mr Allan) providing comments of
what they each saw and concluded. Prof Robery made more extensive comments in
Robery 2 of what he had found at that investigation and his own more comprehensive site
visit undertaken the same day.
L4
[70]
This was the one location where the Procor 3 membrane was exposed. There were
no adverse comments about the thickness of the wearing slab or insulation layer.
Prof Robery noted that the reinforcing steel was deep within the core and showed no signs
of corrosion. He also noted that the foam insulation was in "perfect" condition. All present
noted that the hole created by removal of the core filled slowly with water over the course of
an hour.
36
The condition of the protection board
[71]
The parties differed as to their description of the protection board. The pursuer's
experts, Mr Clarkson and Prof Roberts, both considered that the protection board was wet,
distressed and friable. In Prof Robert's view, the board was no longer protecting the
membrane. Mr Allan thought that the protection aboard appeared to be in good condition;
was firm and stable, and broke apart only in the process of its removal. Prof Robery agreed
that the protection board was wet and swollen. He did not find this surprising given the
presence of water at the location and that the board was a fibre-based board impregnated
with bitumen. In his view, however, the protection board only fell apart when pulled up by
Mr Clarkson. He rejected Mr Clarkson's characterisation that it was "clearly distressed".
The condition of the Procor 3 membrane
[72]
Mr Clarkson and Prof Roberts characterised the membrane as soft and pliable in
places. Prof Roberts also identified a small 10mm
2
square hole in the membrane.
Prof Robery surmised that, as the membrane adhered to the board, damage to the
membrane may have occurred when Mr Clarkson pulled off the protection board. While
he noted that a small area of the membrane on the north side of L4 was more pliable and a
small piece of it had detached, in his view, this was caused by Mr Clarkson's tugging at the
board in order to remove it and which caused the membrane to overstretch. In any event, in
Prof Robery's view, the sole purpose of the board was to provide temporary protection to
the Procor 3 membrane while the insulation layer was fitted on top of it and the wearing
screed cast. In his view, once the insulation was in place, the protection board was
redundant. (There was no challenge to this at the proof.)
37
The condition of the nearby drain
[73]
Water was noted in the hole at L4. It was also noted that the adjacent drain was full
of water on arrival but that a blockage in the lower part of the drain was easily cleared.
(Prof Robery described Mr Clarkson removing the top grillage and flushing the drain with a
hosepipe.) Once this was cleared the water in the hole drained. Mr Allan described the
adjacent drainage as being "completely choked with debris and full of water", but this
cleared after Mr Clarkson's intervention. Prof Robery thought it was an exaggeration to say
that the vertical channels of the drain were "blocked" by concrete; at most these were
partially blocked. In his view, any blockage could readily be remedied.
[74]
Mr Clarkson noted that over the course of an hour the hole at L4 filled to a depth
of 55mm but that there was no sign of it draining to the adjacent gulley. From this he
concluded that the sub-surface drainage was not functioning.
[75]
Mr Clarkson stated that there was no evidence of the membrane lapping into
the drain. Prof Robery was of the view that the correct way to detail this would be a
compression ring running around the drain not lapping. It would not be possible to identify
any discontinuity in the membrane without dismantling the drain itself, which was not
attempted. There was no evidence of discontinuity, for the simple reason that the
membrane was not visible at the drain during the investigation. Dirt and debris inside the
drain prevented a more detailed examination.
L5 and L6
[76]
The samples and findings at L5 and L6 were relatively uncontroversial. At L5 there
was no criticism of the measured thickness of the wearing course of level 1 slab. The hole
was dry and the cored samples were well compacted. The protection board was intact and
38
described as firm and stable. One of the cores had split, and Prof Robery added the
observation that there was no evidence of corrosion to the reinforcing steel mesh. He and
Mr Clarkson also noted an extra layer of polythene.
[77]
At L6, there were no adverse comments about the thickness of the different layers;
there was well compacted concrete in the cores, and no evidence of corrosion. However,
there was evidence of long-standing water when the hole was opened up. Three layers of
blue polythene were noted above the protection board. When cut though, it was clear that
water had been trapped for a long time between the layers of polythene, as it was stagnant
and smelly. Comments about the protection board were made, which were similar to those
made in respect of L4.
The evidence at proof
[78]
I have already noted the documentation produced for the proof. Th e parties
produced witness statements for their witnesses to fact (although one of the pursuer's
experts, Mr Clarkson, also produced three witness statements). These were adopted as their
evidence in chief, followed by cross-examination. The experts spoke to their reports (which
are noted above, at paras [64] and [65]).
[79]
I record the evidence of the parties' respective witnesses to fact in the next sections.
In relation to the evidence from the parties' experts, which comprised the majority of the
evidence, it is not necessary to record the totality of this evidence, or their reports. Some of
these were produced a considerable time ago, or were preliminary reports before the expert
had an opportunity to examine the car park; and often these early reports were produced
before the issues or parties' positions in these proceedings were crystallised. Furthermore,
the scope of the dispute become more focused, and narrowed to some extent, as the
39
evidence emerged. Accordingly, when I come to consider parties' experts' evidence, I
propose to consider this using the seven alleged defects (set out at para [41]) as the
framework, and noting each expert's position on those specific matters.
The pursuer's witnesses to fact
[80]
The pursuer led four witnesses to fact (including Mr Clarkson, for parts of is
evidence) and who, collectively, produced ten witness statements. Mr de Silva spoke to the
2016 WJM Letter.
Graham Tidball
[81]
At the outset of his evidence, Mr Tidball adopted his three witness statements. He
joined the pursuer in 2007, and held several management roles culminating in his current
position as director of commercial parking services from 2015. He spoke briefly to the
remedial works, for which he had oversight on behalf of the pursuer. It was in that context
that the pursuer instructed Neil Clarkson to monitor the remedial works. Mr Clarkson had
been the pursuer's expert instructed for the earlier litigations. He stated that after he joined
the pursuer there were issues with water ingress at levels 1 and 2. In his view, the problems
at level 1 and 2 are due to poor workmanship, and are an extension of the issues at level 3.
The sorts of defects affecting the car park were not ones he had experienced in any other
newly-constructed off-street car park he has managed.
[82]
In response to witness statements from the defender, in particular that from
John Heller (to the effect that so far as he was aware the pursuer had never asserted a
material breach), Mr Tidball denied that the pursuer had never made known their
discontent with the state of the car park. The pursuer had made clear on numerous
40
occasions that the car park the defender had provided was not what the pursuer had
expected or agreed. The pursuer had not sought to terminate the lease before now, as it
thought the defender would remedy everything and the pursuer could then move forward
without a more onerous repairing and maintenance obligation under the lease than had
been agreed to. He described being "shocked" on receipt of the 2018 Repair Notice, which
prompted the pursuer to seek advice as to its options. Having been through two lengthy
and expensive court actions and given the huge amount of management time these
consumed, for the pursuer "enough was enough". He reiterated his position that he had
never seen a car park with these issues; the defects were substantial, expensive and
disruptive. The pursuer would never have taken on the car park with these defects or
assumed the attendant repairing obligations under the lease. In relation to the pursuer's
desire to terminate the lease, the pursuer had always reserved its position in any question
with the defender. He noted the receipt of the 2020 Repair Notice. In his view, the pursuer
never got the car park it bargained for and it now finds itself constantly facing demands
from the defender, as landlord, to carry out significant and expensive repairs. He accepted
that, notwithstanding the Repair Notices, the pursuer had not incurred any costs as it did
not believe it was liable.
Gary Anderson
[83]
At the outset of his evidence, Mr Anderson also adopted his three witness statements.
Mr Anderson, who has worked for the pursuer since May 2016, is its senior area manager for
Scotland. In that capacity he oversees the day-to-day operations of a number of car parks
situated in central Scotland, including the one at the Centre. He was aware of the remedial
works undertaken at level 3, but stated that at no point during any meetings he attended did
41
anyone from the pursuer sign off on completion of the remedial works. Notwithstanding the
remedial works, in his view issues still existed on level 3 in the form of poor drainage, "large
pools of water across level 3" and the pursuer was "still seeing leaks that go through level 3
into the lower levels of the car park".
[84]
In relation to water ingress at lower levels, most of his evidence concerned the car
park prior to the remedial works. (For example, he stated that "flooding" on level 3 was
causing "substantial" problems with water ingress "pouring down through the lower levels
of the car park" (paragraph 10 of his first witness statement.)) To the extent he spoke to any
post-remedial water ingress, it appeared to concern water ingress into the pursuer's car park
office via an incomplete joint, and which resulted in wet floors.
[85]
In relation to maintenance, he asserted that none of the existing problems was as a
consequence of any want of maintenance by the pursuer. He, or another employee, carried
out site inspections of the pursuer's car parks on a fortnightly basis and, further, on-site staff
had a weekly cleaning system to sweep out the drains. At least, this was the position since
the completion of the remedial works. Prior to that, cleaning had been as and when
required, although he conceded in cross that he had no direct knowledge of those matters.
He also explained that the pursuer had a monthly cleaning contract with a third party, ABM.
Mr Anderson maintained that the pursuer had expended a significant amount of money in
upkeep for the car park, mostly on level 3. Mr Anderson did acknowledge that there was a
big problem with seagulls nesting on level 3 and that throughout the nesting season
(described as between April/May to August/September), it was "near impossible to keep
level 3 ...completely clear". He spoke to having instructed ABM to do a deep clean with a
jet wash of level 3 in October 2019 at a cost of c £5,800. In cross, he accepted that he had no
knowledge of the cleaning regime in the period from 2008 to 2016. He also accepted that
42
when he had started with the pursuer, it had kept three staff on site at the car park but that
had now reduced to one person. Under reference to certain photographs showing
significant seagull detritus on level 3, a blocked drain or accumulated vegetation, he
accepted that what they showed was not an acceptable level of cleanliness but he explained
that that was why, latterly, the pursuer had brought in ABM.
[86]
In respect of ponding, as illustrated in the photo below, he accepted that the standing
water in no way affected the operation of the car park.
He was shown another photo, taken during a rainy day, in which level 3 was wet. He
agreed that what it depicted was no different from the top level of any other car park after
a rain shower.
[87]
He was unaware of ever being advised that increased maintenance would be
required to level 3 as a consequence of the change from channel drainage to the valley
gulley. The ponding issue he had described in his first statement was "in various places all
over level 3" and not just beside the drains or gulley. He did not consider the ponding to be
43
as a result of blocked drains and he described ponding remaining, even if th ere had not been
rain for days.
[88]
In relation to de-icing, he stated that no de-icing was carried out at levels 1 and 2,
as these were covered, nor on the ramps as any water would flow down. Grit was used on
level 3, as that was exposed to the elements. After receipt of witness statements from two
former employees of the pursuer, Anthony Fitzwater and Noel McDougall, who stated that
they regularly used salt at the entrance to the car park and on the ramps between each level
and on levels 1 and 2, Mr Anderson returned to the issue of de-icing materials in his third
statement. He was not aware of the practice these witnesses spoke to and had never
instructed it since his time with the pursuer. If salt had been spread during his tenure, this
must have been from leftover salt. The last delivery of salt to the car park he noted from the
pursuer's records was in September 2013, which was delivered to a different car park, and
uplifted by a staff member in November 2016 for use at the car park. The amount of salt
spread on level 3 was "minimal". In cross-examination he was pressed that regular salting
as described by the two former employees was standard procedure. Mr Anderson was
unable to gainsay their evidence. He accepted that salting continued on level 3 up until
December 2020, but maintained it was not in the quantity they spoke to.
Kishan de Silva
[89]
Mr de Silva, a partner with WJM, is a consulting engineer with 30 years' experience.
He had been instructed as an expert in relation to the prior litigations. He was not
instructed in that capacity in the present litigation. He was led for the limited purpose of
speaking to the 2016 WJM Letter, in which WJM had provided a provisional view on the
state of concrete slabs (ie the wearing screed) and on the then-proposed remedial works.
44
From its terms it is clear that it was a summary report expressing preliminary views on the
basis of limited design documentation. Mr de Silva had not visited the car park since 2015
and could not comment on its condition after that time.
[90]
The following passages of the 2016 WJM Letter were put to him:
1)
In relation to the slab (or wearing screed) condition at levels 1 and 2, the report
noted the following (at paragraph 3.3):
"[...]
(b) Cracks in the Concrete Topping were widespread, typically in a rectilinear
pattern, with widths at the surface reported in the range of 0.25mm to 3.5mm.
The arrises (edges) of the cracks were fretted from the wheels of vehicles in many
locations and we suspect that the cracks at depth in the slabs may be narrower.
(c) There was no evidence of spalling of the surface of the Concrete Topping
although there were some limited, localised, areas of delamination.
(d) Rust staining at the surface was reported at 1No location, and in addition
reinforcement was visible at the surface of the concrete on 1No ramp.
(e) There were some limited areas of water ponding on the surface of the slabs at
a number of locations. At Level 2 the water appeared to arise from leaks through
the movement joints and from the suspended drainage system serving the
Level 3 slab above. At Level 1 the water also appeared to arise from leaks at the
movement joints and from the suspended drainage system, but also from a car
washing operation at that level. During periods of rainfall we would also expect
vehicle to transfer water onto the slabs whilst there may be windblown rainwater
entering from the open sides of the Car Park."
2)
As regards the compressive strength (noted at paragraph 3.12),
"3.12 The compressive strength of the concrete is slightly lower than specified but
we would not expect this alone to significantly affect the long-term performance
of the Car Park. The analysis of the concrete did not identify any deleterious
process that would affect the performance of the concrete, but it did identify that
the concrete had a relatively high water/binder ratio which may have led to
undue drying shrinkage and the cracking that has been identified in the Concrete
Topping [ie the waring screed]".
45
3)
In respect of the steelwork it was noted (at paragraph 3.43):
"Steelwork
3.43 Our instructions are to summarise the results of the recent investigations of
the concrete slabs of the Car Park and to prepare outline remedial works
proposals for the slabs (see the second paragraph on Page 1 above). However,
during our site visits we viewed the steelwork at Levels 1 and 2 of the Car Park
and for completeness summarise our key findings as follows:-
(a) We saw no evidence of significant impact damage,
(b) We saw no widespread and serious corrosion of the steelwork. In particular
we saw no prising of connections due to corrosion of the steelwork.
(c) There was water staining of the steelwork in a significant number of areas
due to water penetration primarily from movement joints, drainage gullies, linear
drains and suspended drainage.
(d) The steelwork along the perimeter of the Car Park was also water stained,
probably due to wind-blown rain through the semi-open elevations of the Car
Park (see Plate 5 in Annexe 12).
(e) Where the steelwork was water stained the coatings were peeling away in
places (see Plate 8 in Annexe 12).
(f) Some areas of the steelwork was affected by corrosion albeit we judge that
this was superficial at this stage.
(g) In areas the intumescent coating is damaged due to water leakage and hence
the fire resistance of the steelwork will have probably been reduced in significant
albeit relatively local areas."
4)
The report summarised its findings as follows (in paragraphs 4.3 and 4.4),
"Remedial works
4.3 We summarise the key problems identified by the investigations that affect
the slabs and the other elements of superstructure of the Car Park as follows
(a) Modest corrosion of the reinforcement to the Concrete Topping at Levels 1, 2
and 3 has been initiated at certain locations.
(b) Water and chlorides are present at the level of the reinforcement. At Levels 1
and 2 and the ramps the chloride contents are classified as having a high or
extremely high risk of initiating corrosion and at Level 3 the chloride contents are
classified as having negligible or low risk of initiating corrosion, all on the basis
of guidance given in BRE 444-2.
(c) The Concrete Topping at Levels 1, 2 and 3 contain widespread cracks that
could allow water and further chlorides to penetrate down to the reinforcement.
The surface coating at Level 3 is missing over large areas.
(d) The outer concrete to the planks have higher chloride contents than we would
have expected, although this is based on only 4No measurements.
(e) The coatings for corrosion and fire protection have peeled from the steelwork
in places, and some areas of the steelwork have been affected by limited
corrosion, due to water ingress on to the steelwork: the fire resistance of the
steelwork has also been compromised in areas.
46
4.4 The Car Park is some nine years old, and if no appropriate remedial works
are implemented there is a significant risk of reinforcement corrosion and
damage to the Car Park structure in the foreseeable future. The objective of the
current remedial proposals is to extend the service life of the Car Park and to
provide a method to monitor the performance of the Concrete Topping to give
advance warning so that additional measures can be taken in the future if
significant corrosion initiation is identified."
[91]
In relation to cracking (referred to at paragraph 3.3(b)), the comments in the
2016 WJM Letter on the pattern of cracks were based on the Darley Report (of which the
crack maps formed part). In respect of the Darley crack maps, while Mr de Silva had no
reason to believe Darley were anything but reliable, he regarded the markings on the Darley
crack maps to be crude and apt to mislead, in the absence of the key specifying the crack
width the different colours were meant to depict. Mr de Silva confirmed that rectilinear
cracking above pre-cast planks was not surprising or a cause of concern. He confirmed the
recommendation to repair cracks of 1mm or more, and that additional work such as
bridging would be required for cracks over movement joints.
[92]
He was asked to relate two photographs (at plates 7 and 8) appended to the
2016 WJM Letter to the movement joint referred to in sub-paragraph (e), but he was unable
to recall their location. This is not surprising, given the passage of more than 6 years since
his single site visit. Plate 8 showed the flaking paint to the steelwork caused by water
leaking through an expansion joint. The flaking appeared to be superficial.
[93]
As regards the peeling paint work on the steelwork underpinning the levels, in his
view the cause for this was water leakage from above. The paint was intumescent paint,
which provides a degree of fire resistance to the steelwork. He estimated the total area
affected to be about 5% of the steelwork. This water damage was localised, not widespread.
Where it had occurred, it was significant because of the loss of the fire-retardant effect of the
intumescent paint.
47
[94]
In cross-examination Mr de Silva confirmed that he was not an expert instructed in
this case; that the 2016 WJM Letter was expressing only a preliminary view; that he had not
returned to the car park since March 2015; that he had assumed a design-life of 50 years for
the car park when making his various assessments; and that the Darley crack maps could
give the wrong impression as to the width of the cracks unless read together with its key.
He was unable to comment on the current state of the car park or on any remedial works.
[95]
He explained that "spalling" was the disruption to the concrete wearing screed if a
reinforcing element (such as the mesh), expanded as a consequence of corrosion.
[96]
He explained that Darley had exposed the mesh in several areas but found no
severe cracking and no serious ongoing reinforcement corrosion. In short, there was no
widespread serious corrosion of the reinforcing steel mesh at either level 1 or 2. The absence
of spalling was consistent with this. However, he did note that the chloride levels at the
depth of the reinforcing mesh were high, and which carried a risk of corrosion in the future.
[97]
He also confirmed that the slightly lower compressive strength of the concrete
(which was not structural) would not itself significantly affect the long-term performance of
the car park. Furthermore, there was no need to replace the steelwork underpinning levels 2
and 3 of the car park. The flaking paint on the steelwork was superficial and if this were
cleaned up and repaired, the steelwork would serve its intended purpose.
Mr Clarkson
[98]
While Mr Clarkson was led as an expert to speak to his three reports, he also
produced three witness statements. These detail his involvement in monitoring the
remedial works on behalf of the pursuer, how those progressed and his role in the technical
discussion (including the adoption of gulley drainage at level 3). Little, if any, of this is
48
relevant to the defects alleged. To the extent that he expresses a view on other matters, this
is better dealt with as part of his opinion evidence, which I address below.
The defender's witnesses to fact
John Heller
[99]
John Heller is the Chief Executive Officer of London Associated Properties ("LAP"),
a property investment company and an investor in inter alia the Centre. Among a portfolio
of loans LAP acquired in 2013 was that concerning the Centre. LAP were shareholders of
the defenders for the period 2013 to 2019. Mr Heller had no direct knowledge of the matters
relevant to the defects. To the extent that the defender undertook the remedial works, at a
cost of £1,262, 025 (the figure is from his second witness statement; the lower figure in his
first witness statement was the contract costs), this was indicative of its intention to insist on
the terms of the lease. If the pursuer had indicated that it wanted to terminate the lease, this
sum would not have been spent. On this point, he was pressed in cross-examination that the
defects identified repairs would have been required, regardless of whether the pursuer
terminated the lease. Mr Heller resisted answering the question directly, stating that the
defender may or may not have sought another remedy, but that this was not considered as it
was believed that the pursuer was liable. He ultimately accepted that the remedial works to
level 3 would in any event have been required in order to secure a new tenant to replace the
pursuer.
[100]
He also explained that the defender paid compensation to the pursuer for the loss of
the use of car parking spaces during the remedial works, in accordance with the formula in
the lease. He spoke in general terms to the decline in visitor numbers to shopping centres
and consequent decline in revenue for associated car parks. In order to counter an
49
impression given by one of Mr Tidball's statements, Mr Heller confirmed that he was not
aware of the pursuer carrying out any material repairs to the car park since 2008.
[101]
On the question of the cathodic protection required in the 2018 Repair Notice, put
to him in cross, he relied on the experts to identify what was required. He accepted the
proposition that there was going to be "a big bill" sooner or later because of the present
situation and that he did not want the defender to be left to pay for it.
Stephen Allan
[102]
Stephen Allan, a chartered surveyor, is a senior director with CBRE Limited. His role
includes project management. Much of his witness statements dealt with CBRE's role in the
remedial works and responded to Mr Clarkson's first statement on those matters. So far as
relevant to the issues in this case, Mr Allan rejected Mr Clarkson's criticism of the defender
for not removing the Procor 3 membrane from the insulated area of level 3. If the defender
had stripped out the precast concrete and Procor 3 membrane above the insulated area, as
Mr Clarkson suggested, Debenhams would have had to close for 3 months. In his view, that
was undesirable, given its impact on Debenhams, nor was this necessary. The water found
in this level was pumped out, the Procor 3 membrane was repaired and then the Decseal
product applied to the surface of the wearing screed. This superseded the need to remove
the underlying Procor 3 membrane.
[103]
He explained the decision to replace the channel drain on level 3 with the valley
gulley, as suggested by Mr Clarkson. He confirmed the terms of the minutes that
Mr Clarkson was advised of the enhanced level of maintenance for such a system (a matter
Mr Clarkson said in his evidence he could not recall), and also that there may be increased
50
ponding because of the reduced capacity of the gulley system to hold rainwater. (This was
not challenged in cross.)
[104]
In relation to the SABA joint (part of alleged defect 1), Mr Allan confirmed that,
while the SABA joint had not been part of the remedial works, this was programmed to be
done, but its installation was delayed by bad weather (on the several planned points of
installation), and by the sale of the defender (in 2019). It had been planned for spring 2020.
[105]
In relation to the report of a water leak into the pursuer's office on level 1 in
October 2019 via the expansion joint, he had inspected the levels above and ascertained that
a plant room on level 3 (which was above the pursuer's office) had flooded as a result of a
nearby drain being blocked by seagull waste. After this drain was cleared, the water was
pumped from the roof. Following the unblocking of the drain, which he regarded as a
maintenance issue for the pursuer, there were no further leaks reported into the pursuer's
office.
[106]
In relation to the leaks from level 1 into a retail unit, he was not aware of any repairs
undertaken by the pursuer. He rejected Mr Clarkson's contention that this was caused by
water coming from level 3. This was because the leaks from the insulated area of level 3
above Debenhams (which is the opposite corner from the DW Sports unit) had ceased after
the remedial works were completed. He also explained that Mr Clarkson attended the
practical completion meeting for the remedial works in October 2018.
[107]
He responded to some of the pursuer's alleged defects, as follows:
1)
defect 1: He did not accept Mr Clarkson's assertion that a waterproof membrane
had not been provided over the whole of level 3. Following the remedial works
Decseal had been applied to all areas of level 3. Nor did he accept Mr Clarkson's
interpretation of the Specification, that two levels of waterproofing were required
51
for the insulated area. In any event, following the remedial works there were
two layers: the repaired Procor 3 and the new Decseal surface application. As
for the structural joint, this work had been instructed.
2)
defect 2: Mr Allan was surprised that Mr Clarkson criticised the falls or ponding
on level 3. A new and superior drainage system, as suggested by Mr Clarkson,
had been installed as part of the remedial works. Mr Clarkson had been made
aware that this might result in some ponding. The design for the new drainage
system included improvement to the falls where this was possible. Any residual
ponding was not significant and did not affect the operation or maintenance of
level 3.
3)
defect 3: He also rejected Mr Clarkson's reading of the Specification as requiring
a waterproof coating on the level 3 ramp.
4)
defect 6: While he understood from the Centre manager, Mr Neil Mackie, that
there had been some leaks from level 1 into one retail unit, he understood that
these were minor and that the pursuer had never been asked to fix this. He
rejected Mr Clarkson's view that the source of this water was from level 3. In his
view, water reached level 1 either from cars coming off the streets in wet
conditions or from the car wash operated in that part of level 1 (and which had
ceased operations in 2019).
5)
defect 7: In his view, this was an isolated event resulting from a blocked drain
that had been cleared, and this had not recurred.
52
Neil Mackie
[108]
Neil Mackie is the manager of the Centre, a position he had held for 21 years. His
evidence, which was not subject to cross-examination, may be summarised as follows:
1)
Leaks into Debenhams: Leaks into Debenhams had occurred from the beginning,
when the car park was opened in August 2008. The pursuer was never asked to
undertake or pay for the associated remedial works at level 3. He observed that,
while Neil Clarkson had recommended removal of the entire slab construction
above Debenhams, Mr Mackie described this as "100% impractical", not least
because of the impact on the Centre's anchor tenant (Debenhams) who was
known to be in financial difficulty. Volkerlaser undertook more limited work of
patch repairing the Procor 3 membrane over the insulated area, replacement of
the insulation layer, resurfacing the concrete above that and the application of a
new surface waterproof membrane. Since those works were done, there have
been no further leaks.
2)
Ponding on level 3: Mr Mackie spoke to some continuing ponding on level 3,
even after the remedial works, and silt accumulating in some areas. In the main,
he attributed this to poor maintenance by the pursuer and he explained that he
had had to instruct the Centre's own maintenance team from mtime to time.
3)
Leaks below level 1: In his view, the extent of leaks below level 1 were minimal
and confined to the DW Sports unit. This was not a torrential leak, but periodic
drip leaks. This was below the area where a car wash had been permitted to
operate on level 1 for around 10 years. This brought an increased level of water
into level 1 along with additional salt and organic matter washed from cars. The
leaks ceased when the car wash ceased operations.
53
Noel McDougall and Anthony Fitzwater
[109]
The statements of these two individuals were agreed as their evidence in chief. They
were not called and therefore not cross-examined. Their evidence is relevant to the second
ancillary issue (see paras [49] and [50], above), and which I summarised in those paragraphs.
[110]
Mr McDougall was car park supervisor from 2008 to late 2017. He confirmed that
salt was used to de-ice the car park in the winter. This was applied to the top, bottom and
length of the ramps. The salt came on pallets containing 50 bags of 25kg each. They put salt
bags at the tops and bottoms of each ramp, to make it easier to spread when required. After
an ice-spreading machine broke, this was done manually with shovels. If more salt was
needed, he would contact Gary Allan who would arrange for the delivery of one or two
pallets (ie between 50 and 100 bags). They could get through between one and two pallets
of salt over a winter. He confirmed that the kind of salt was the same as that depicted in one
of the photographs appended to Davis 2.
[111]
In relation to the cleaning regime, he explained that after the cleaning machine broke
down (in about 2010), all cleaning had to be done by hand. This consisted of Mr McDougall
and the attendant on shift going around at night picking up litter using a hand picker. It
was not possible to wash down the surfaces of the level 1 and 2 decks, as this was too big a
job to do manually. He did not regard it as within his responsibilities to clean up the seagull
guano on level 3 due to the health and safety risk. He described Gary Anderson as being
reluctant to spend money toward the upkeep of the car park.
[112]
Mr Fitzwater worked as a car park attendant from 2015 to 2018, immediately after
Mr McDougall's departure. He corroborated the essentials of Mr McDougall's evidence.
The cleaning regime was undertaken manually; level 3 was closed during the breeding
54
season and its surface was only power-washed once in 2017. Salting was standard
procedure and when he began work there was a pallet of bags of salt (which he estimated
as being 30 to 40 bags of 20kg each). In his view, it was undoubtedly the case that
Gary Anderson was aware of the regular use of salt, not least because he instructed
Mr Fitzwater to collect more from the pursuer's car park in Livingston when they ran out
at the car park.
The opinion evidence
Preliminary comments
[113]
As noted above, the parties' four experts produced multiple reports over an
extended time-frame. In the case of some of the four experts, their first reports were simply
desk-top studies before they had visited the site. For that reason and because parties'
positions have evolved over the time, I do not propose to rehearse these. I propose to record
each expert's qualifications, the circumstances leading to their instructions (where relevant),
and then, as I address each of the seven alleged defects in turn, to set out their final or settled
opinions on each of those defects.
Mr Clarkson
Qualifications
[114]
Mr Clarkson, a director of NRS consult ltd, is a chartered engineer, a fellow of the
Institute of Civil Engineers and he holds a BSc (hons) and MSc. His curriculum vitae
(appended to Clarkson 1) records that he has worked on many major developments in
Scotland and throughout the UK, Hong Kong and Australia; that he has a wide range of
experience within the industry including the design of large retail, commercial, industrial,
55
conference, education and infrastructure developments; and that he has experience of many
types of contract procurement and construction methods. Mr Clarkson has also lectured in
structural design to final year students at Edinburgh University where he was made an
Honorary Fellow in 2001.
Mr Clarkson's prior involvement
[115]
Mr Clarkson has been involved in the parties' dispute about the car park since 2016.
Initially he was instructed by the pursuer as an adviser on the problems affecting the car
park and as its expert for the earlier litigations. After those settled, he was retained to
protect its interests in respect of the proposed remedial works. He produced a total of four
reports. (His first report was omitted from the joint and core bundles.) Much of what is
covered in his earlier reports concerns defects that have now been repaired, or which are
outwith the issues in this case.
Objection to Mr Clarkson
[116]
Shortly before the earlier diet of proof set down for June 2020, the defender lodged
a note of objections, dated 9 June 2020 ("the Clarkson Objection") challenging the
admissibility of the evidence of the pursuer's expert witness, Mr Clarkson, on the grounds
of a want of impartiality and independence. This led the pursuer to seek to instruct a second
expert, Prof Roberts. While receipt of his report was opposed (because it imperilled the
then-imminent proof diet), that opposition was dropped on the basis that the parties agreed
that the defender would be permitted to instruct a further expert and the proof discharged.
It was also the view of the defender's Senior Counsel, Mr Sandison QC (as he then was), that
a proof of this complexity could not be conducted remotely. (The defender`s second note of
56
objections, of May 2021, was superseded by court orders.) The defender maintained its
objection to Mr Clarkson in submissions. I set this out below (at para [222]).
Prof Roberts
[117]
Prof Roberts, BSc (Eng), PhD, CEng, FIStructE, FICE, FIMS, FCMI, MICT, Emeritus
Professor of Civil Engineering at Kingston University, has specialised in concrete and
masonry design and construction throughout his career. Of most relevance to the issues in
this case are his memberships, as a fellow of the Institution of Structural Engineers, of the
Institution of Civil Engineers, of the Institute of Concrete Technology, and of the
International Masonry Society. He is presented as an expert in the specification, design and
construction of concrete and masonry. In his parole evidence he confirmed that his principal
area of expertise was masonry.
[118]
Given the circumstances of his first instructions, noted above, he was only able to
provide a desk-top study just over two weeks after he was instructed on the basis of the
documentation then available. From its terms, it is clear that he was heavily reliant on the
reports and views of Mr Clarkson. Indeed, prior to his own investigations (recorded in
Roberts 2), Prof Roberts could do no more (in Roberts 1) than record Mr Clarkson's findings,
as he was in no position separately to check or interrogate them. He produced Roberts 2
after his site visit in December 2020, and in which he also responded to Davis 2 and
Robery 1. In both of his reports, Prof Roberts relies substantially on Mr Clarkson's reports.
Even in Roberts 2, he defers to Mr Clarkson's close involvement (eg at paragraph 5.1).
57
Mr Davis
[119]
Mr Davis has been a partner in WJM since 1989. He has a BSc (Hons) in Civil
Engineering from Manchester University and an MSc in Construction Law and Arbitration
from King's College London. He is a Fellow of the Institution of Civil Engineers and a
Member of the Institution of Structural Engineers. In evidence, he explained that he has
been investigating the deterioration of concrete structures since 1985, including car parks in
particular since 1993. His first report (Davis 1) was a desk-top study instructed to respond
to Clarkson 1. In Davis 2 he reports on his findings, following his site visit and meeting with
Mr Clarkson in March 2020. Reference was made at the proof to some of the 88 photographs
appended to Davis 2. Davis 3 responded to Clarkson 2. Davis 4 replied to Clarkson 3 and
Roberts 2.
Prof Robery
[120]
Prof Robery is the Royal Academy of Engineering visiting professor in Forensic
Engineering at the School of Engineering in Birmingham. He is also a Chartered Civil
Engineer, and a Fellow of the Royal Academy of Engineering, of the Institution of Civil
Engineers, of the Concrete Society and of the Institute of Concrete Technology. He was
appointed President of The Concrete Society for two 1-year terms (2006/7 and 2007/8) and
served on its Technical Executive Committee that is responsible for the technical standards
and consistency of the Society's Technical Reports and other publications.
[121]
He has specialised in the field of concrete construction and materials technology for
over 40 years, with particular expertise in the deterioration of structures including car parks,
bridges and maritime structures. He has a particular specialisation in concrete car parks and
the assessment of their condition and residual life, and he is very familiar with the normal
58
methods of specification, testing and interpretation of concrete test resu lts. He also
specialises in the performance testing of concrete repair systems, including membrane and
coatings. In relation to specialist bodies concerned with the standards for the concrete
industry, he sits on the European Committee for Standardisation ("CEN") responsible for
developing BS EN 15042. The professional association which is particularly relevant to the
issues in this case are his successive appointments by the ISE to serve on its Task Group
responsible for the 2002 and 2011 ICE Design Recommendations, as well as his appointment
by the Institution of Civil Engineers ("ICE") to serve on its steering committee for the Report
"Recommendations for the inspection, maintenance and management of car park structures"
1
st
edition (2002) and 2
nd
edition (2018).
[122]
After his site visit when attending the April 2021 Investigation, he produced
Robery 2. Prof Robery is the only expert who recorded in detail his thorough technical
examination of the car park, and who provided the most comprehensive photographic
record (comprising more than 120 photographs with explanatory narrative as one of the
appendices to Robery 2), to evidence what he observed. Prof Robery is also the only expert
who measured the cracking at the different levels and provided the measurements and
locations of those cracks. (The others relied on the Darley crack maps, with some modest
cross-checking.)
The seven defects alleged by the pursuer
Consensus which emerged among the experts at proof
[123]
The seven alleged defects (noted at para [41], above) were agreed by the parties
at the outset of the proof. As noted above, there has been a very large volume of
documentation produced, much of it now historic, and a considerable number of technical
59
and expert reports. (Indeed no more than two or three documents in the Joint Bundle were
referred to in the parole evidence elicited at proof.) However, as the evidence emerged at
proof, the dispute between the parties narrowed further.
[124]
As I note more fully below, the pursuer's principal expert, Mr Clarkson, ultimately
accepted that the effect of certain remedial works either resolved the particular problem they
sought to address, or they enabled reasonable use of the car park, even if the car park as
remediated did not precisely conform to the original specification (or Mr Clarkson's reading
of it (defect 1)). As will also be seen, the pursuer's senior counsel abandoned its case in
respect of most of defect 3. In respect of other defects, such as ponding on level 3 or
corrosion to stations under levels 1 and 2, (being defects 2 and 4 respectively), or the
completion of structural or expansion joints (defect 7 and part of defect 1), the pursuer's
experts ultimately accepted that these were all minor matters, or involved relatively modest
further remediation. By the conclusion of their evidence, the views of the experts coalesced,
at least to the extent that they each accepted that none of the defects alleged precluded the
reasonable use of the car park. As the evidence developed, alleged defects 5 and 6 emerged
as being potentially more serious (if established) and potentially involving considerable
expenditure. Further, in the course of parties' submissions, it became clear that the pursuer
regarded Mr Clarkson as its principal expert on whom it placed most reliance, and the
defender placed most reliance on Prof Robery. For these reasons, I propose to record only
the experts' respective final positions. Further, where Prof Roberts' views were the same as
Mr Clarkson's, and where Mr Davis' views were the same as Prof Robery's, there would be
little utility in also recording their views.
60
Defect 1(a): the level 3 waterproof membrane issue
Consensus that the Decseal system applied has resolved the leaks from level 3
[125]
There are several strands to this allegation: that the Specification required two levels
of waterproofing across level 3; that the Procor 3 membrane sandwiched between the level 3
slab and the concrete wearing screed of the insulated area had not been removed as part of
the remedial works; and it remained defective. For the first strand, the disconformity with
the Specification, the pursuer relies on Mr Clarkson's reading of the Specification.
[126]
However, notwithstanding opinions expressed to the contrary in their reports,
Mr Clarkson and Prof Roberts both accepted in their parole evidence that the Decseal
system, applied as part of the remedial works to the whole surface of level 3, appeared to be
performing adequately and that no leaks had been reported since those remedial works
were completed.
Mr Clarkson's and Prof Roberts' evidence
[127]
Perhaps reflecting his involvement in the earlier litigations, in which he was an
adviser for the pursuer, Mr Clarkson dwelt in his reports on the historic issues of the
deficiencies in the Procor 3 membrane at level 3, and the resultant water leaks from level 3
into the Debenhams' unit. Mr Clarkson's position is that the Procor 3 membrane on level 3
over the insulated area is defective. He infers that it must necessarily be so, because it
had permitted water ingress into the Debenhams' unit immediately below level 3,
notwithstanding that it is a water-impermeable material designed to prevent water ingress.
However, that part of paragraph 3.9 of the Specification relevant to level 3 provided:
"Car park level 3 - membrane applied as part of composite floor over th e ar ea of
the anchor store back of house areas [ie Debenhams]. A surface applied proprietary
61
waterproofing finish is applied over the balance of the area at this level."
(Emphasis added.)
This was put to Mr Clarkson, who ultimately accepted that the requirement for two forms of
waterproofing applied only to the insulated area. Mr Clarkson nonetheless remained critical
of the original architects (Keppie) for not specifying a second layer of water proofing, and he
believed that Keppie did not understand the engineering requirements. However, this
criticism is not advanced by the pursuer in this case.
[128]
Mr Clarkson was also critical because Decseal was not the proprietary product noted
in the Specification; only part of the Decseal "system" had been applied and he doubted its
long-term efficacy. The technical sheets for Decseal were put to him. This was a non-slip
epoxy resin. In his view, the application of a top layer of Decseal onto the wearing screed of
the ramp area was insufficient. That was only a waterproofing finish. There was no
mention in that data sheet of having any waterproofing capacity. It was part of, but did not
comprise the totality of, the whole Decseal waterproofing system. The whole Decseal
system had not been installed as part of the remedial works.
[129]
No other expert supported Mr Clarkson's contention that the Procor 3 membrane
over the insulated area required to be dug up and replaced. In cross-examination,
Mr Clarkson could not gainsay that there had been no report of any leaks after the
installation of the Decseal system at level 3. Mr Clarkson still maintained that the Procor 3
membrane is defective (and was not lapped at the drains) but he ultimately, if reluctantly,
accepted that the alternative method of waterproofing in the form of Decseal system was
adequate. In his view, it was not wholly equivalent because it had a shorter warranty
period, though the respective warranty periods were not specified. (This is of no moment as
the pursuer did not seek to make a case that the defender was obliged to supply or transfer
62
any warranty in respect of these works.) Mr Clarkson's ultimate positon was that the
Decseal system applied to the top surface of the deck at level 3 provided an equivalent level
of waterproofing as the original Procor 3 membrane and that it was adequate at present.
[130]
Prof Roberts shared Mr Clarkson's view that the Procor 3 membrane had been
incorrectly installed at the construction stage and that, for so long as it remained in situ,
this was a defect or non-conformity with the Specification. However, Prof Roberts also
accepted that the replacement Decseal system was functioning adequately and that there
were no reported leaks from level 3.
The defender's evidence: Mr Davis and Prof Robery
[131]
Prof Robery noted that the Centre manager, Mr Mackie reported that there are no
issues of leakage reported by Debenhams (the occupier of the retail unit below the insulated
area). In his view, given the combination of a fully-reinforced Decseal waterproofing
material applied over the entire area of the level 3 deck, the new movement joint system,
and the new SABA joint at the boundary with this area (which is the subject of defect 7), he
did not expect there to be any leakage issues. In Mr Davis' view, waterproofing materials
may not be strictly in accordance with the Specification (Davis 2 at paragraph 10.15). He
also acknowledged that the Procor 3 membrane over the insulated area may contain some
minor defects (ibid at paragraph 10.11 (a)). However, the new Decseal system was fully
functioning. It provided an equivalent level of waterproofing to the original Procor 3, a
proposition Mr Clarkson ultimately accepted. Both Mr Davis and Prof Robery explained
that, while Decseal was not marketed as a waterproofing material, it had the same ch emical
composition as other waterproofing materials. In Prof Robery's view, the Decseal
component applied to the surface of the level 3 deck effectively superseded the embedded
63
Procor 3 membrane. In relation to Mr Clarkson's initial position about the requirement for
two waterproof membranes, Mr Davis' position was that "there is nothing that I can see in
the AofL that called for two functioning membranes to be provided over any part of
Level 3".
Conclusion on defect 1(a)
[132]
I accept the defender's submission that there was no requirement in the Specification
for two membranes to be installed over the whole area of level 3 of the car park. In my view,
properly construed, paragraph 3.9 of the Specification (quoted at para [11], above) only
required that a membrane was to be applied as part of the flooring over the "anchor store
back of house areas" - the area corresponding with the insulated area. Mr Clarkson's
assertion that there was such a requirement is based on a misreading of clause 3.9, a position
Mr Clarkson accepted in his parole evidence. In respect of the "balance" of the area of
level 3, a surface-applied waterproofing finish was all that required to be installed. This
has now been achieved. It may be that the Decseal product was not as specified in the
Specification, but there was no evidence to indicate that it would result in any lesser
protection or performance.
[133]
Part of the pursuer's case is that the Procor 3 membrane over the insulated area is
defective (essentially, because of the leaks in the past) and requires to be removed.
However, this fails to take into account the remedial works, which included repair of parts
of the Procor 3 membrane over the insulated area as well as the Decseal application. No
leaks have been reported since then. To the extent any minor defect remained, it was not
causative of any issue in terms of maintenance or use of the car park.
64
[134]
Nor do I accept that there is any requirement that the Procor 3 membrane be
removed from the insulated area or that the failure to do so is a relevant breach of the
Agreement. Four factors inform this view. First, all of the experts ultimately accepted that
the Procor 3 membrane originally installed was now redundant by reason of the remedial
works. Secondly, all of the experts accepted that there had been no leaks reported after
those works were completed. Thirdly, there was no evidence that leaving the Procor 3
membrane in situ in the insulated area produced a materially less functional car park, or one
that is likely to require significant repairs or maintenance for the duration of the pursuer's
occupation. Fourthly, Mr Mackie's evidence was that it would be "100% impractical" to
remove the embedded Procor 3 membrane from the insulated area. This would be
disproportionate from the tenant's perspective, as it would have meant a 3 month closure of
the Debenhams' unit below. Given that the Decseal system applied appears to be effective,
the defender's refusal to remove the embedded and now redundant Procor 3 membrane is
reasonable and has no adverse impact on the quality or use of the car park.
[135]
For these reasons the pursuer has failed to establish defect 1(a).
Defect 1(b): the level 3 expansion joint
[136]
Such limited evidence as there was relative to the expansion joints was not always
easy to relate to the structural joint around the insulated area (defect 1(b)) or to the
expansion joint installed on a north-south axis (defect 7). On the evidence, a short length of
the joint was identified as faulty or no longer having the requisite waterproof seal at this
point: see Robery 1 at paragraph 4.2.5 (and associated photograph no 30 in appendix 3). No
witness questioned on this issue suggested that its repair was anything other than a modest
65
exercise. In Prof Robery's view, this should be dealt with as a question of maintenance. He
had also inspected the area beneath this in April 2021 but found no evidence of leaks from it.
[137]
To the extent that there was any difference amongst the experts, I prefer Mr Robery's
evidence as to its features and as being subject to the tenants maintenance obligations. The
pursuer has failed to establish defect 1(b).
Defect 2: the level 3 ponding issue
The pursuer's experts
[138]
The second alleged defect concerned ponding on level 3, which was said to manifest
itself in the form of several areas of water that did not drain away via the valley gulley
formed as part of the remedial works. Mr Clarkson's view was that while the majority of the
falls on level 3 were adequate, there was ponding along a length of the central valley line,
and up to a metre's width on either side.
[139]
Mr Clarkson maintained for a considerable part of his evidence that these areas of
ponding constituted a health and safety risk for cars and pedestrians, at least in the winter,
if these areas of ponding froze; and that this "unreasonably limits the operation of several
areas" of the car park (Clarkson 2, paragraph 8.3.2). At one point, he went so far as to
suggest freezing at the head of the ramp on level 3 might require that level of the car park to
close. He accepted that he had never warned the pursuer of a risk in these terms. Subject to
his comment about the health and safety risk, he ultimately accepted that these areas did not
unreasonably restrict the use of the car park. In relation to photographs taken on a wet day,
showing water over the surface of the car park, he could not contradict Gary Anderson's
acceptance that, as depicted, this was no different from any other car park in Britain exposed
to the rain, and that this would not preclude the use of the car park in such a condition.
66
[140]
Mr Clarkson relied on a levels survey he undertook in January 2021 (produced as
appendix 4 to Clarkson 3) and three photographs he had taken of level 3 on a dry day. The
latter showed small areas of damp (which had not yet evaporated) at points where the
surface level of the deck was below that of the nearest drain. Below is the photo he
reproduced with the levels survey:
[141]
As depicted in the photographs, the largest of the ponds was estimated to be no
more than about 1.5 by 0.700 metres. Their locations corresponded broadly with the line of
the valley gulley running on an east-west axis. Another area of ponding was adjacent to the
67
edge of a built-structure (see para [86], above). In terms of the photographic evidence, the
total area of ponding or damp patches was individually of very modest proportions, was
very shallow and the overall area affected constituted only a very small proportion of
level 3, a characterisation which Mr Clarkson accepted. He also accepted that, as depicted in
the few photographs he had taken, all parking bays were usable and nothing would affect
the reasonable operation of the car park.
[142]
In relation to the level survey, plotted from individual measurements of the surface,
the areas marked blue on the level survey appeared as larger areas than the ponding shown
in related photographs. However, Mr Clarkson accepted that its purpose was to identify
those points where the levels were lower than (and could not therefore drain to) an adjacent
drain. The level survey did not depict (and was not intended to depict) actual areas of
standing water. He also accepted that the level survey had been of only about 40% of the
surface of level 3.
Prof Roberts
[143]
Prof Roberts' evidence on this issue was in short compass. In his opinion, as a
consequence of initial failure at construction, there was inadequate deck and drainage
gradient at level 3 which needed to be addressed. He did not indicate in what way this
should be achieved.
The defender's experts
[144]
Prof Robery noted that level 3 showed isolated instances of ponding over the new
Decseal membrane surface close to the valley gulley, but his "overall impression was of a
deck that has good gradient falls from high points to valleys that would encourage rapid
68
shedding of rainwater and followed good practice" (Robery 1 at paragraph 4.2.4). Mr Davis
noted that while the car park was generally laid to a minimum fall (of 1 in 60), there were
instances where the fall is less than as recommended. In each of his four reports he had also
noted some ponding, but this was not uncommon in car parks and the ponding was not
significant. The photographs Prof Robery took after his visits to the car park were appended
to his reports. He noted that he found that the surface of level 3 was generally dry,
notwithstanding that he visited the day after "torrential" rains. The following photo
(plate 30 of Robery 1) is representative of the largest individual areas of ponding on level 3:
[145]
Under reference to 112 photographs in Appendix A3.2 to Robery 1, he concluded:
"The Decseal surface was generally dry despite the previous day's torrential rain". In
Prof Robery's opinion, it was simply not feasible to achieve perfect falls over large areas
such as on the decks of multi-storey car parks. He was not challenged on this evidence.
[146]
Prof Robery's overall conclusion from his visual inspection was as follows:
"4.5.1 In my opinion, I found little evidence on which to criticise legitimately the
newly waterproofed Car Park.
4.5.2 I have inspected many car park structures over my career, many with
negative falls leading water away from drains, and resulting in large areas
of standing water. I had expected to see this type of defect at the Car Park,
based on my reading of the reports submitted by APCOA's experts.
69
4.5.3 The evidence I found was completely to the contrary, as I saw decks with
good falls from ridges into valleys at all Levels, and n o significant areas of
ponding. Where rainwater ponding was occurring, in the small areas that I
saw on Level 3, this was commonly caused by blocked drain grillages, due to
a lack of maintenance by the operator APCOA." (Robery 2)
[147]
Mr Davis was also of the view that any ponding found on level 3 was no worse than
commonly found on roof-top car parks (Davis 2 at paragraph 5.3 (b)), and there was no
evidence of extensive ponding (ibid at paragraph 4.6). His visit was two days after the last
rainfall. The ponding he noted was not extensive, apart from an area in the north-east
where a leaking tap was preventing the area from drying out. He looked for silt deposits
and tide marks, which can indicate regularly occurring puddles, but he did not find much
evidence of this. He did find some silting in the channels between the gullies, which
indicated that these were holding water (ibid at paragraph 4.6).
Maintenance issues said to affect ponding and drainage
[148]
The first of the ancillary issues I identified above (at para [49]), whether or to what
extent any inadequacies in the pursuer's tenant's cleaning contributed to ponding, is
relevant to this issue. No witness demurred from the proposition that regular cleaning
would aid drainage and was part of the appropriate regime for maintaining a car park. I
have already noted the evidence of the witnesses to fact touching on this. As noted above,
seagulls nest on level 3 and may not be disturbed during the breeding season. This poses
challenges to the maintenance of the car park at those times. While there was some evidence
that debris impeded the free-flow of a few drains (as depicted in some photographs), the
detritus shown on other photographs appeared along the perimeter, as occurs when
wind-blown debris meets a barrier (see, eg the photograph at para [83] or at paragraph 3.8 of
70
Davis 4). However, in other photographs, the level 3 deck looked clear, clean and
well-maintained.
[149]
On the evidence I have heard and upon an examination of all of the photographs
produced, I find that there is no single cause for the limited amount of ponding which
persists on level 3. Some ponding occurs in those areas where the surface of level 3 is below
the level of the gullies or nearest drains. Water cannot flow upwards. Water trapped in
these low lying areas can only disappear by evaporation. In dry weather, the ponding is
minimal; in wetter seasons, it remains for longer. To the extent that there was persistent
ponding recurring in the same location, this was in or near the valley gulley. On balance, a
lack of maintenance is likely to be a contributing factor in that location. This is because none
of the pursuer's witnesses who gave evidence, including Mr Clarkson, appeared to have
appreciated that this style of gulley may require greater maintenance at times of heavy rain.
Some of the photographs of this location show some build-up of silt and some of which
partly-obscured a nearby drain. Finally, the areas of ponding on level 3 were not related in
any obvious way to the other ponding in the area of the disabled parking bays at level 1
(that is, two levels below). While Mr Anderson asserted that water poured down between
the levels, this is an extravagant exaggeration. There is simply no evidence to support any
pathway for the water on level 3 to reach level 1.
Comment on Mr Clarkson's and Prof Robery's assessments of the same area of ponding
[150]
I did not have the benefit of a site visit. On the issue of ponding, the real dispute
between the experts did not really involve the application of their expertise (eg as to its
cause), as much as a qualitative judgement about the degree of ponding. I have included
above (at paras [140] and [144]) examples of the photographs relied on by Mr Clarkson and
71
Prof Robery, respectively. They were taken on different days but show broadly the same
location on level 3. They also show a similar level of ponding. The two photographs
provide a useful comparator of their different qualitative assessments. I accept
Prof Robery's assessment as more balanced and realistic as to what is portrayed. On this
issue, Mr Clarkson's assessment tended to be overstated, and not supported by other
evidence. On this, as on other issues, when faced with other evidence, Mr Clarkson was
compelled to moderate his criticisms. There is some force, therefore, in the comment of
other witnesses that some of Mr Clarkson's conclusions were over-stated.
Conclusion on defect 2
[151]
Mr Clarkson was challenged on the basis that the few photographs he had produced
did not demonstrate any material ponding issues. For the reasons just stated, there is force
in this challenge. I have reviewed the photographs provided by or spoken to by the experts.
Even from the photograph Mr Clarkson associated with his levels survey, the ponding
depicted was very modest. No more than a few parking bays were affected, and these were
only minimally so. I accept the evidence that such ponding as there was did not restrict the
reasonable use of the car park. In any event, this affected level 3 which, on other evidence
was the least used (because furthest from the Centre an d inhospitable in bad weather).
[152]
I have also considered the levels survey. While as a matter of basic physics it is
correct that water cannot flow upwards, the amount of water left lying in those areas below
the level of the nearest drain - or the total area affected - was minimal. I accept
Prof Robery's assessment as more measured and reflective of the photographic and other
evidence. I also accept his evidence that it is difficult to get perfect falls across such an
expanse in this kind of structure. Accordingly, I do not find that the modest amount of
72
ponding supports the pursuer's case that the falls on level 3 are deficient or demonstrative
of poor workmanship, or are inadequate in any material sense.
[153]
In light of my findings that the extent of ponding was modest and did not restrict the
reasonable use of the car park, I conclude that the pursuer has not proved that the car park
was defective or failed to conform to any specified standard by reason of the amount of
ponding following wet weather.
Defect 3: the level 3 ramp damp-proofing issue
The pursuer's concession
[154]
As I understand Mr Clarkson's position, in his view damp-proofing on the level 3
ramp was required (i) by the ISE recommendations for exposed levels of multi-storey car
parks, and (ii) on his reading of the Specification and plans. He was critical of the decision
in 2008 of Keppie, the architects instructed on behalf of the defenders, to remove provision
for this during the design phase as part of a "value engineering" exercise. In his view,
Keppie failed to co-ordinate the design requirements of the other professionals, including
the engineers.
[155]
In submissions, Mr Howie abandoned this allegation insofar as it related to the
surface of the level 3 ramp. Mr Howie's concession was well made: after the relative plan
by Keppie was put to Mr Clarkson, namely "L (11)004 `Level 3 waterproofing'" (which was
contained with appendix 9 to Clarkson 2), Mr Clarkson ultimately accepted that Keppie had
not specified damp-proofing on the level 3 ramp. Furthermore, the Woolgar Hunter
methodology recorded (at paragraph 4.5.7) that the final specification of waterproofing was
to be "confirmed by architect", that is, by Keppie. As Prof Roberts relied on Mr Clarkson's
interpretation of the contract Specification and plans, his evidence also falls away.
73
Accordingly, defect 3 was insisted on to the very limited extent of the surface area at the
head of the level 3 ramp, an area of a few m
2
(Prof Roberts estimated about 2m
2
).
Prof Robery's evidence
[156]
On his site inspection, Prof Robery detected that there was, in fact, a Decseal
interdeck waterproof finish on the level 3 ramp. Under reference to five photographs, he
noted that the coating on or near the head of the ramp was beginning to deteriorate, with
approximately 10-15% loss of waterproofing on the surface in this location. However, he
regarded this as "needing only minor work to repair or replace" the 12-year old coating on
the ramp.
Conclusion on defect 3
[157]
To the extent that the pursuer maintained its case on this defect, it was solely in
relation to the head of the level 3 ramp. The evidence on this was scant. Mr Clarkson
asserted that there was no waterproof membrane at the h ead of the ramp. However,
Prof Robery observed that there was a waterproof coating, but that it appeared to be
suffering from wear. Regardless of whether waterproofing was required at the head of the
level 3 ramp, this was not causative of any loss to the pursuer (assuming there had been a
breach). This is because, on Prof Robery's evidence, such a surface would wear out after
about a decade or so. The pursuer has occupied the car park for 13 years. In those
circumstances, any repair or renewal would be covered by the tenant's repairing obligations.
I do not find that any relevant defect has been established on this matter.
74
Defect 4: the corrosion to the steel work at the underside of levels 1 and 2
[158]
The level 2 and 3 decks of the car park are supported by horizontal steel beams in a
grid pattern resting on vertical steel stanchions. It is clear from some of the photographs of
the undersides of these levels that there has been water penetration for a period of some
years prior to the remedial works. Some of these steel structures show signs of water
damage at their upper edges, consistent with the areas of historic water ingress from level 3.
Every expert accepted that historic water ingress had caused some of the paintwork at the
top of the stanchions to bubble or peel away and that some of the steelwork was showing
evidence of corrosion. In addition to the paint protecting the steel work against corrosion, it
was intumescent paint, which provides a degree of protection to the structure in the event of
fire.
[159]
The principal differences amongst the experts were as follows:
1)
how serious was the present state of corrosion,
2)
how extensive it was throughout the car park,
3)
whether remediation involved removal of the loose paint and repainting, or a
more intrusive removal process involving industrial blast-cleaning before any
repainting, and
4)
the risk and timescale of any future deterioration.
The pursuer's evidence
[160]
Prof Robert's evidence was in short compass: it was important that the damaged
paintwork to the steel was repainted, but he agreed that "it was not a major concern in the
sense of it being at this stage of any structural significance". In Mr Clarkson's view, there
was "significant corrosion" to the steelwork to the underside of levels 2 and 3 of the car park
75
which required repair. He attributed this to failed waterproofing of the upper surfaces.
Mr Clarkson produced two plans marked with the areas of corrosion (see Clarkson 3 ) and
three photographs of the underside of level 3 in support of his conclusion that these showed
rust and corrosion damage. The plan for level 3 had solid lines on a grid pattern, apparently
replicating the majority of the steel work. The plan for the steelwork underpinning level 2
was marked with solid lines along the two valley gullies. He estimated that this kind of
damage affected 10 to 20% of the steelwork. He was challenged on the ground that he had
not produced more photographs. His position was that what was depicted in the
photographs was typical of the area beneath the channel drain that had been replaced at
level 3, and extended along the continuation of this beam line. In his view, there was some
similar damage to the steelwork at the underside of level 2, along the same axis as the beams
in the underside of level 3, but there was less corrosion at the underside of level 2. No
photographs were produced of the corrosion he found at the underside of level 2.
[161]
In cross, he accepted that he had produced no tests to evidence that corrosion was
continuing to take place or, if so, at what rate. He also accepted that these areas could be
repaired at modest cost. He noted that this had initially been included in th e Volkerlaser
repair specification, but was subsequently removed. He did not accept that simple painting
would suffice - the loose paint had to be blast-cleaned first. He ultimately accepted that
such a process would only disrupt a few parking bays at a time, that the repairs required to
address the issue of corrosion was a minor matter, and that they could be repaired at modest
cost.
76
Comment on the extent of corrosion depicted in Mr Clarkson's 3 photographs
[162]
Mr Clarkson produced only three photographs to support his position on corrosion
(one of the photographs in the body of Clarkson 2 was duplicated in the appendix). These
depict very modest areas of water staining or bubbling paint (consistent with corrosion), and
generally only at the uppermost part of the stanchion at its edge. There was no sign of
corrosion to the primary steel which was the principal underpinning support to the level
above. Further, these photographs show only intermittent, not wide-spread or continuous
runs of, corrosion. This is inconsistent with the marked areas of Mr Clarkson's plans, which
would suggest continuous runs along the valley gullies marked as well as extensive areas of
damage.
The defender's evidence
[163]
By contrast, Prof Robery described what he observed as slight surface rusting that
simply required maintenance painting. Quite properly, Prof Robery also recorded matters
that might be adverse to the position of his instructing client. So, for example, he noted (at
paragraph 4.3.10 of Robery 1) in relation to corrosion of the steelwork, that the
"condition of the paint system to the steelwork below the main movement joint was
noticeably worse than in other areas, which I attribute to the historic leakage issues at
the movement joint in the Level 3 deck."
He also noted (at paragraph 4.3.12, ibid) that "[i]n the central area of the deck, I observed
more areas of paint peeling from the steelwork either side of the main movement joint, and
some break-through Corrosion". He documented both of these findings with photographs.
His comment on what was depicted in Mr Clarkson's photographs was that they depicted
"slight surface rusting". Prof Robery estimated that the total steel work affected comprised
just 1% of the total steelwork and could be resolved by maintenance painting.
77
[164]
The evidence of others who examined the car park was inconsistent with
Mr Clarkson's initial evidence as to its extent. Prof Roberts' brief observation (in Roberts 2,
at paragraph 3.14) was that there was corrosion damage to a steel beam at level 2 caused by
water ingress. He offered no view on the extent of the steelwork affected. Mr Davis
described the damage as "quite slight" (at Davis 3, paragraph 5.9; see also Davis 4 at
paragraph 3.23) which, in his parole evidence he estimated as amounting to no more than a
few percent of the total area. Mr de Silva's diffident suggestion of the total area affected,
having not visited the site since 2016, was around 5%. In terms of the percentage of the steel
affected, Mr Clarkson's figure is unsupported by the evidence. Of the other figures
mentioned, I am inclined to disregard Mr de Silva's, simply on the basis that it was based on
a recollection of a visit 5 years earlier. I prefer the evidence of the defender's experts, both of
whom had visited within the 6 or 7 month period prior to the proof, as more accurate and
measured. Ultimately, Mr Clarkson accepted that the areas of corrosion were "minor
matters" which could be easily repaired at modest cost. All of the other witnesses,
Prof Roberts as well as Prof Robery and Mr Davis, also agreed with this characterisation.
Conclusion on defect 4
[165]
The weight of the evidence does not support the pursuer's case that there was
extensive corrosion to the steelwork underpinning levels 2 and 3. Such intermittent
corrosion as is shown is not uniform, nor widespread. This was an assessment that even
Mr Clarkson and Prof Roberts accepted. The corrosion depicted in the photographs appears
to be superficial and only to affect the top flanges of the stanchions, at their edges. No
witness suggested that the present level of corrosion posed any risk to the integrity of the
steel work as a supporting structure. Furthermore, Mr Clarkson, Mr Davis and Prof Robery
78
all agreed that this could be simply repaired at modest cost. In light of the foregoing, I find
that the pursuer has not established defect 4. The pursuer has not established that the
present state of the steel underpinning levels 2 and 3 was as a result of any breach by the
defender. Given the age of the car park and the relatively modest extent of the corrosion,
this more properly falls within the tenant's repairing obligations.
Defect 5: the level 1 and 2 cracking issue
[166]
I have already described the properties of concrete as a material (above, from
paras [18] to [21]), including its tendency to crack as it cures. By its nature, alleged defect 5
raised potentially much more serious concerns, if the presence of wide-spread cracking
indicated or facilitated any compromise to the integrity of the level 1 and 2 decks, or if the
presence of the cracks entailed very substantial remediation costs. There were several
discrete, but interlinked, factors which may be discerned from the evidence.
1)
Remediation costs: The first, and simplest, factor was whether cracking itself was
indicative of poor workmanship. Related to this was the issue of what width of
crack necessitated remediation (by infilling) and what width of cracking was
acceptable and could be left untreated.
2)
Water ingress and corrosion to the reinforcing steel mesh : The second factor was
whether the cracks permitted water ingress to the lower layers of the deck and, in
particular, to the reinforcing steel mesh embedded in the wearing screed, and
which would result in its corrosion. (The proposed cathodic protection system,
as required by the 2018 Repair Notice, was intended to ameliorate that risk.) It
was disputed whether any corrosion, or wide-spread corrosion, had been
initiated. A discrete matter that emerged in the evidence, and which may be
79
related to the issue of water penetration via cracks at level 1, was whether, in
addition to any risk of corrosion to the reinforcing steel mesh embedded in the
wearing screed, excessive amounts of water had penetrated through the wearing
screed and accumulated on the underlying Procor 3 membrane.
3)
High levels of chloride present in the wearing screed: The third factor, the
presence of high chloride levels, was directly relevant to the second factor, as
chloride was a water-soluble substance which could exacerbate corrosion. It is in
this context that the second of the ancillary issues I identified above, namely the
factual dispute about the pursuer's staff's use of de-icing salts, is relevant.
Before addressing the competing evidence of the parties, it is helpful to note points of
consensus that emerged among the witnesses.
Consensus that cracking was non-structural
[167]
There was a significant amount of evidence relating to this issue. I have already
described the Darley crack maps (see paras [57] to [62], above) relied on by Mr Clarkson and
Prof Roberts, and commented upon by Mr de Silva and Prof Robery. It was ultimately
accepted that the cracking observed was not structural. The cracking at issue affected only
non-structural concrete elements, namely, the wearing screed comprising the upper most
layer of each deck of level 1 and 2.
Consensus that the reinforced steel mesh was redundant
[168]
It will be recalled that a reinforcing steel mesh was embedded within the wearing
screed and, as noted above (at para [20]), the purpose of this was to control shrinkage
cracking of the concrete as it cured. In Prof Robery's view, stated expressly in his report,
80
the mesh became redundant after this initial curing process was finished. The possibility of
redundancy was not addressed in either Mr Clarkson's or Prof Roberts' several reports, but
this was accepted in their parole evidence. This affects the other factors relevant to alleged
defect 5. This clearly has implications for the second and third factors, recorded two
paragraphs above. If the steel reinforcing mesh was redundant, subsequent corrosion
damage was unlikely to produce any real adverse consequence for the car park. Further, if
that were correct, the possible effect of chloride as an agent of corrosion also ceases to be
relevant.
Mr Clarkson
[169]
On this issue, Mr Clarkson was the pursuer's principal witness. In his view, the
amount of cracking generally was more than one would expect in a wearing screed 13 years
after its construction and the majority of the cracks were greater than design
recommendations. More specifically, in relation to level 1, Mr Clarkson suggested that the
wearing screed "has extensive cracking over the whole area": Clarkson 2, paragraph 9.2.1.
In relation to level 2, Mr Clarkson observed that the "concrete topping [ie the wearing screed]
to the pre-cast units has cracking over a significant area": Clarkson 2, paragraph 9.1.1. His
position was that there was a pattern of cracking which was excessive, and which was "not
what would be expected from properly placed concrete": ibid. He also noted the extent of
cracking to the wearing screed in Clarkson 3 (the table at p 14 (item "Slab cracking", at
level 2), and on p 16 (item "Concrete wearing slab", at level 1). He rejected the proposition,
put to him under reference to paragraph 4.5.7 of Woolgar Hunter's methodology (in the Joint
Bundle), that cracks of up to 0.3mm wide were permissible. In his view, this was taken out of
context and related to the requirements of a waterproofing system.
81
[170]
In his parole evidence, Mr Clarkson modified the position stated in his reports. In
relation to level 1, Mr Clarkson accepted that the wearing screed was not structural; that,
whatever the nature of the cracking, it was non-structural cracking and, as such, posed no
threat to the structural integrity of the car park. In relation to level 2, Mr Clarkson
maintained that these cracks corresponded with the pre-cast concrete slabs and from this
he inferred that the cracks extended to the depth of these slabs. He accepted he had not
measured these, nor had he undertaken any moisture analysis of any water ingress into the
cracks. He also accepted that any spalling (as had been found on level 3) was historic only,
and that there was no evidence now of spalling at levels 1 or 2. Mr Clarkson was challenged
for not having undertaken his own survey of the cracking or measurements of the width or
depth of cracks. He maintained his reliance on the Darley crack maps. While he did not
accept that there was no need to repair cracks of 1mm or less, he accepted that in respect of
wider cracks, this was a minor repair which simply involved sealing.
Prof Roberts
[171]
Prof Roberts also relied on the Darley crack maps, which he regarded as thorough.
The presence of cars at the time of his site visit precluded his doing anything other than
some localised checking. He shared Mr Clarkson's view that the cracking at levels 1 and 2
were as a consequence of poor workmanship at the time of construction. He accepted that
cracking was expected, but that the widths of the cracks were greater than expected. He did
not accept that cracks of width under 0.5mm could be left untreated. The cracks were a
concern because they provided access to the reinforcing steel mesh.
82
The defender's expert witnesses
[172]
Mr Davis noted widespread cracking on levels 1 and 2, which he attributed to a high
water-to-cement ratio. Mr Davis noted that the design crack width was 0.3 mm, although
the permitted deviation was as much as =/- 50%. From his examination of levels 1 and 2,
some cracks were wider than he would have expected in properly designed and constructed
reinforced concrete (Davis 2, paragraph 4.14). The wider cracks would benefit from sealing.
His overall view was that both levels appeared in good condition and that no signs of
damage to the concrete could be seen (ibid at paragraphs 3.8(a) and 3.9(a)).
[173]
In terms of the width of cracks tolerated in the wearing screed of a multi-storey car
park, the fullest evidence on this matter was that of Prof Robery. This was in the context of
the nature of concrete as a substance that always cracks and, indeed, is inten ded to crack by
design. I first record his evidence about how, generally, cracks in concrete can occur and the
width of cracks which are tolerated. As he explained (in Robery 2):
"3.2.17.1 ..... Concrete is brittle, whereas steel reinforcement is ductile. By way
of example, when a beam flexes, the steel stretches and the concrete cracks. It is
commonplace to limit structural cracking to 0.3mm, principally for aesthetic
reasons, by using sufficient reinforcing steel to control cracks. Reinforced
concrete design to BS 8110, as used for the car park design, has traditionally
limited structural cracks to 0.3mm when under full load.
3.2.17.2
Second, wider cracks often occur in concrete due to `non-structural'
effects, included in which are plastic shrinkage cracking, thermal cracking and
long-term drying shrinkage cracking. Such cracks are commonly much wider
than 0.3mm and unless these cracks lead directly to structural reinforcement,
commonly they are not treated till the widths are greater than 0.5-1.0mm wide."
(Emphasis added.)
While those observations relate to structural concrete, the permitted width of non-structural
concrete, like the wearing screeds of levels 1 and 2, is likely to be at the upper end of that
83
range. Prof Robery adopted the figure of 1.0, and, on his evidence, cracks of that width or
wider should be repaired.
[174]
In terms of the number and size of cracks in the wearing screed, Prof Robery was the
only expert who took his own measurements of cracks throughout the three levels of the car
park as well as on the ramps. He may have had the good fortune that both levels 2 and 3
were largely empty of cars at the time of his visit. (Prof Roberts commented that at the time
of his inspection the lower levels of the car park were packed with cars.) Prof Robery's
findings in relation to level 2 were as follows:
"4.3.5 There were areas of general cracking of the concrete wearing screed in places,
which exhibited as a pattern of cracking that was not consistent with any structural
movement of the deck. I say this because in my opinion and experience the pattern
of the shrinkage cracking was random in appearance and did not follow any
structural features, such as transverse joints between the precast pre-stressed planks.
4.3.6 The crack width was characteristic of normal shrinkage cracking, or
restrained shrinkage, which would have developed in the 12-year old concrete
wearing screed (Kingsgate 97, 99, 120). The cracks were typically 0.3mm to 0.5mm
wide in the surface, with normal abrasion and wear causing the top surface to open
out, which gives the appearance that the crack is wider than it really is.
4.3.7 I saw other, finer cracks, but these were less than 0.3mm width and so by any
reasonable assessment these would normally be considered of no consequence. I say
this because 0.3mm is the normal crack width to which concrete structures have been
designed over the preceding 25 years to the construction of the Car Park [the foot
note reference here was to BS 8110]. Concrete structures are expected to crack t o this
width without any detriment to their performance.
4.3.8 The only wider crack that I noted in the concrete wearing screed was at the
`dog-leg' in the construction, with a single crack radiating from the 90-degree
re-entrant corner, but which quickly closed and disappeared (Kingsgate 122 - 123).
The crack would benefit from sealing with a flexible material and, in my experience,
this is only a minor repair."
And in respect of level 1, his findings were similar:
"4.4.1 The Level 1 concrete wearing screed, used over the insulation and the
concealed Procor 3 waterproof membrane, was of similar appearance to Level 2,
finished to a good standard and to the same falls.
84
4.4.2 The wearing screed had areas of cracking in places, and, as with Level 2,
the pattern of the cracking suggested these were drying shrinkage cracks, widely
spaced and not orientated to the structural form, and by their narrow width are
difficult to photograph (Kingsgate 177-183). The deck was free from typical
structural cracking."
After noting the different modes of construction for the level 2 and 1 decks, he continued:
"4.4.4 In my experience, the unbonded screed on Level 1 will be more prone to
shrinkage cracking than the bonded screed on Level 2, and so I would expect to see
wider and more frequent cracking, and this appeared to be the case. As the concrete
wearing screed is unbonded, and there is Procor 3 waterproof membrane beneath the
insulation, any rainwater that does penetrate down the wider cracks would not be
able to reach the structural concrete floor, comprising reinforced concrete on metal
decking, that lies below it. The collection of water on the Procor 3 membrane would
therefore be of no consequence to the structural behaviour."
[175]
Prof Robery also took care to identify larger cracks, being those wider than 1mm, and
he recommended they be sealed as part of normal maintenance. The appearance of these
few larger cracks was in his view explicable, as they often radiated from a sharp corner
(eg the column of a stanchion) and which served as a stress concentration point. There was
no challenge to the veracity of any of Prof Robert's recorded observations about the
condition of the wearing screed of levels 1 and 2 or to his more specific findings about the
nature or number of cracks.
[176]
In relation to the cost to repair the few larger cracks, Prof Robery's opinion was that
this was a straightforward and modest repair. He estimated a cost of c £250 per linear
metre, which meant a total cost of around £2,000 to address the two cracks exceeding 1mm.
There was no challenge to this evidence. Nor could there properly be any challenge, as
Mr Clarkson accepted that, if only cracks wider than 1mm were repaired, the repair costs
would be modest. Prof Roberts accepted these cracks could simply be sealed.
85
[177]
Turning to the issue of corrosion risk, while Mr Clarkson and Prof Roberts both
assumed that cracks in concrete posed a corrosion risk, Prof Robery was the only expert who
critically examined this proposition. The relevant passage (from Robery 1) is as follows:
"4.6.15 Cracks visible in a concrete surface, such as a car park deck, usually taper and
so are narrower at the depth of the reinforcing bar. Only significant cracks, greater
than 0.5mm at the bar depth, are considered to offer any increased risk of corrosion
(e.g. Allen, Broomfield (ibid)). Even then, the rate of ingress of chloride ions and
moisture is limited, as they are offset by the local alkalinity of the concrete and the
ability of the cracks to self-repair, a process known as autogenous healing.
4.6.16 For these reasons, high rates of corrosion do not occur at cracks, because
effective corrosion cells cannot form:
4.6.16.1 Firstly, reinforced concrete will always crack, in response to normal
structural loading, with steel reinforcing bar used to control cracks, normally
to 0.3mm or less, with no consequence for concrete durability (e.g. as design to
BS 8110 shows (ibid).
4.6.16.2 Secondly, concrete shrinkage often causes `non-structural' cracks, which are
fully explained in standard publications 35. Once non-structural have formed,
usually over the first two years from construction, they should be sealed to prevent
penetration of water and chloride salts and to some extent will self-repair in any
case.
4.6.17 Therefore, in my opinion shrinkage cracking of the type seen at the Car Park
at Level 2 is a common phenomenon with a bonded concrete wearing screed, and
this will be of higher risk in unbonded construction, as used on Level 1. Significant
cracks can be simply and cheaply sealed at the surface and so will not present any
significantly increased risk of reinforcement corrosion." (The defender relies on
the passages highlighted.)
[178]
Those comments were in Robery 1, produced before Prof Robery had had the benefit
of meeting the pursuer's principal expert, Mr Clarkson, which he did at the April 2021
Investigation. Having done so, he noted that all of the experts were agreed that the cracking
on levels 1 and 2 was caused by the expected shrinkage as the concrete cured. He described
his findings in Robery 2 in respect of the wearing screeds at level 1 (at paragraph 4.3.11) and
in respect of level 2 (at paragraph 4.3.7) as follows:
86
"Level 1
4.3.11 ... this refers to the 75mm thick floating screed laid onto insulation, detailed
in the April Inspection notes. The experts accept these cracks are due to plastic
shrinkage cracking. Shrinkage cracks in a non-structural floating screed are of no
consequence, as there is provision for any water penetrating through cracks to be
trapped on the Procor 3 below and be conveyed to drains. Cracking of 0.3mm
width is not relevant to the durability of the Level 1 floating screed or the structure
below. I am not aware of any cracks at Level 1 that are wider than 1mm, except at
the dog-leg movement joint, and this cracking should be sealed; I estimate this
may be 5m of crack that requires resin sealing and so is not a major maintenance
item. I accept the surface appearance would be improved by applying an intermediate
deck coating to seal the cracks, but I do not consider it to be essential work."
(Emphasis added.)
And
"Level 2
4.3.7 ...: There are cracks in the bonded wearing screed applied to the precast
prestressed hollowcore planks (the `Planks'), and all the experts in this dispute
accept these are due to plastic shrinkage. Shrinkage cracks in a non-structural
screed will taper and not prove a path for water to reach the Planks below.
Therefore, cracking of 0.3mm is not relevant to the durability of the Level 2 slab and
in my opinion, only cracks of 1mm or above need to be addressed. I am not aware
of any cracks at Level 2 that are wider than 1mm, except the dog - leg movement
joint, and this cracking should be sealed. I estimate this may 3m of crack that
requires resin sealing and so this is not a major maintenance item. I accept the
surface appearance would be improved by applying an intermediate deck coating
to seal the cracks, but I do not consider it to be essential work".
[179]
Prof Robery approached this issue in a more nuanced way. In short, his view was
that cracking itself - or at least of the kind found on levels 1 and 2- was unlikely to be the
means by which corrosion would occur. He explained how corrosion can arise, as follows:
"4.5.4 I have also seen many car parks that have been affected by reinforcement
corrosion, due to chloride salt penetration from cars or de-icing salts used on the
deck. The salts will result in characteristic brown staining of the concrete, as
corrosion products leach through the surface, and the expansion pressures caused
by steel corrosion causes spalling that will require patch repairs. I saw no evidence
of any such damage or any patch repairs to the deck surfaces that would be
necessitated by problems of ongoing reinforcement corrosion at the Car Park.
Brown corrosion product can also leach between and through the precast
prestressed hollowcore planks when viewed from below, but again I saw no
evidence of any brown staining, just white calcite stains.
87
4.5.5 As I have noted earlier in my report, the testing evidence suggests some of
the reinforcement in the concrete wearing screed at Levels 1 and 2 may now be at
a higher risk of corrosion, because the chloride ion content at the depth of the
reinforcement exceeds 0.4% bwc. However, for a significant rate of corrosion to
develop, the concrete must be regularly wetted with chloride-containing water,
such as an external bridge parapet would be.
4.5.6 In the Car park, the Level 1 & 2 decks are well drained and generally dry.
Consequently, any reinforcement that is of higher risk of corrosion, due to elevated
chloride ion content in the concrete, will only corrode at a slow rate. Furthermore,
as the corrosion risk exists in the concrete wearing screed and not in the precast
prestressed planks, then such corrosion (if it were to occur) would not be of any
structural consequence.
4.5.7 My recommendation is that the corrosion risk should be monitored over the
remaining life of the Car Park, and inspection and testing should be a standard
maintenance item in the Life Care Plan at intervals that I suggest should be every
5 years." (Emphasis added.)
In his parole evidence, he confirmed that, even if water penetrated to the reinforcing steel
mesh and caused corrosion, given the depth of the reinforcement and the "very, very small"
amount of likely expansion, any corrosion which might take place in the future was not
likely ever to have any deleterious effect on the concrete screeds at levels 1 and 2 in the next
12 years.
[180]
In relation to the presence of corrosion, in Prof Robery's opinion,
"there is currently no evidence of any deterioration of the wearing screed due to
reinforcement corrosion, or any significant penetration of chloride through the
concrete wearing screed and such as to cause any risk of corrosion in the precast
prestressed planks that provide the main structural load capacity of the decks"
(Robery 1 paragraph 4.6.6).
In assessing the risk of corrosion arising from cracks, he noted that
"4.6.7 It has been known and established over many decades that corrosion risk
in reinforced concrete is affected by overall penetration of chloride ions into the
concrete by a process of absorption and diffusion, rather than penetration at cracks
in the concrete. [Citations omitted] This can lead to corrosion cells being established,
and loss of section of the reinforcement can occur at the anodes of the corrosion cells.
88
4.6.8 The testing by Darley, using the half-cell potential method, is a common
technique that is used to find areas of a concrete structure that are more anodic
than others, and the data shows higher negative potential results in some areas.
4.6.9 In my opinion, having anodic sites on the reinforcement, as indicated by the
half-cell potential test, is not any indication that active corrosion is occurring. High
negative potentials only indicate a probability that corrosion may be occurring,
provided other conditions are satisfied.
4.6.10 For corrosion to occur, the anode and cathode sites need regular quantities of
both moisture and oxygen. The test reports that I have reviewed, which comment on
the condition of the reinforcing bar in the concrete wearing screed after it has been
broken out and inspected, do not show any significant loss of steel section due to
corrosion.
4.6.11 Therefore, in my opinion, at this time the combination of the use of the
Decseal Interdeck waterproofing finish on Level 3 and the good falls and drainage
provided generally to the deck surfaces at all three levels, has worked collectively to
keep the concrete generally dry and minimise the risk of actual corrosion
occurring." (Emphasis added.)
Discussion of alleged defect 5
[181]
I first consider the issue of corrosion to the reinforced steel mesh (factor 2 at
para [166(2)]). On this matter the pursuer is concerned that the high level of chlorides found
in the wearing screed, coupled with what it regards as excessive cracking, pose a risk of
corrosion of the reinforcing steel mesh. (This is separate from the issue of corrosion to the
steelwork underpinning the level 1 and 2 decks.) This risk is perceived to be elevated by
reason of the presence of high levels of chloride. (The source of the chloride is the second
ancillary factual dispute between the parties.)
[182]
I start by observing that the pursuer led no eviden ce at proof to establish that
corrosion to the reinforcing steel mesh had occurred or even that the process of corrosion
had been initiated. An indicator of such corrosion would be rust-staining bleeding through
the wearing screed but neither of the pursuer's experts identified any location where this
was occurring. Turning to the question of whether there was a risk of corrosion that may
89
manifest itself during the remaining 12 years of the lease, I prefer the evidence of
Prof Robery to that of the pursuers' experts. Of all of the experts, he has the greatest level of
professional expertise in the properties and performance of concrete, as is evidenced by his
involvement inter alia in the production of the technical guidance in the form of the 2011 ISE
Design Recommendations, and his membership on specialist technical committees of the ISE
and ICE concerned with car parks. More importantly, his views were cogently reasoned,
supported by reference to the relevant technical guidance or papers, and expressed with
care and precision. His qualitative assessments, tested against the other objective evidence
(eg photographs or measurements) were verifiably moderate and reasonable. Consistent
with the qualities of independence and impartiality, he recorded findings even if they might
be adverse to the defender's position. Two examples suffice: he measured and recorded in
full the largest cracks he found; he also produced many photographs evidencing the good
and clean condition of level 3 of the car park.
[183]
In light of Prof Robery's evidence, there is no substantial risk of corrosion likely to
materialise during the currency of the lease. I accept as correct his explanation that the mere
presence of cracks is not a significant risk factor; it is the wide-spread wetting with
chloride-impregnated water. However, the level 1 and 2 decks are generally dry. Even
then, on his (unchallenged) evidence, the rate of corrosion is very slow. I return to the
consensus that emerged about the redundancy of the reinforcing steel mesh. It was this
element within the wearing screed which gave rise to the corrosion risk.
[184]
As noted above, a consensus emerged among the experts that cracking was to be
expected. This should not have been contentious, as I note that it is stated in the 2002 ISE
(at entry 1 to table 8.1 at p 68) that in concrete "cracking can be controlled, but not
completely eliminated". Prof Robery was also the expert who exhibited the greatest insight
90
into the use of reinforcing steel mesh as a means of controlling what he described as
early-age cracking, and for that reason, could explain his position that such a mesh was
thereafter redundant after that early-age cracking had ceased. Again, this was a matter that
was ultimately accepted by the pursuer's experts, when the proposition was put to them.
[185]
However, the implication of this redundancy was not fully worked out in the
evidence of the witnesses. If the reinforcing steel mesh is now redundant, whether or not
there is corrosion or there is a risk of it occurring, ceases to be of any material consequence.
Putting this another way, even if the risk of corrosion were to materialise, or to proceed at a
faster rate than Prof Robery projects, given the redundancy of the reinforcing steel mesh -
the very element at risk of corrosion - the likely impact in terms of the wearing screed or the
need to repair is negligible. There would be no utility in repairing an element which no
longer served any active purpose. This is at least implicit in the defender's concession
withdrawing the 2018 Repair Notice (which is the one requiring a cathodic protective
system).
[186]
In light of these conclusions, the ancillary issue as to the source of the chloride is
effectively superseded. For completeness, I should record that on the conflict in the evidence
between the defenders' evidence (particularly Mr McDougall and Mr Fitzwater) and that of
Mr Anderson as to the pursuer's use of de-icing agents, I would have no hesitation in
preferring the former. On this chapter of his evidence, Mr Anderson appeared to be less
than candid and unwilling to assist the court. When the evidence of Mr McDougall and
Mr Fitzwater was put to him, his response was, in effect, to shrug this off with the comment
that "that's what they say". His other answers were guarded, eg of speaking of only finding
certain purchase orders for salt while not engaging with the question of what he himself
knew. Moreover, his evidence had the further limitation of not covering anything like as
91
extensive a period as that of these two witnesses, who, collectively, covered the period
from 2010 to 2019. On their unchallenged evidence, very significant volumes of de-icing salts
were used without restraint through winter months for all of those years. Accordingly, I find
that the activities of the pursuer's employees materially contributed to the high chloride
readings found in the decks of the car park.
[187]
The remaining factor is that of the cracks and the cost of remediation. As noted
above, Mr Clarkson and Prof Roberts were critically dependant on the Darley crack maps.
So, for example, in cross Mr Clarkson asserted that there were a significant number of cracks
greater than 0.3mm. However, in that same passage of evidence, he accepted that he had
not counted the number of cracks in excess of 0.3mm; he could not say how many cracks
were greater than 1.0mm, and that he had no reason to doubt Prof Robery's own
measurements. He referred to having "validated" the Darley crack maps but he accepted
that he had relied on these. In my view, their reliance is undermined by the evidence from
Prof Robery and Mr Davis that, from their own measurements, the Darley crack maps
exaggerated the width of the cracks. Given their observations, and their further evidence
that the cracks were narrower at depth, I prefer their evidence to that relied on by the
pursuer's experts.
[188]
In terms of the competing qualitative assessments of the cracking in the level 1 and 2
wearing screeds, on this matter I also prefer the evidence of the defenders, and especially
that of Prof Robery. He described the decks at levels 1 and 2 as finished to a good standard
or in good condition. Both decks were free of any structural cracking. Such cracking as
there was at level 1 was a result of drying shrinkage cracks; and at level 2, was not
consistent with any structural movement of the deck. Furthermore, in his view the cracking
was not indicative of poor workmanship, a view that Mr Davis also shared.
92
[189]
While the cracking was extensive, this was not itself a risk factor. I also prefer the
defender's experts' evidence as to the width of cracks that may be left untreated and those
which require to be repaired. This was well-vouched by the technical guidance. There were
relatively few cracks in the category requiring repair. Following his survey, Prof Robery
identified only two cracks of 1mm or more, one each at level 1 (of approximately 5 metres in
length) and level 2 (of approximately 3 metres in length) and both situated near a particular
stress point (which he described as the "dog leg"). In relation to the cost to repair the few
larger cracks, Prof Robery's opinion was that this was a straightforward and modest repair,
likely to cost around £2,000. There was no challenge to this evidence. Nor could there
properly be, as Mr Clarkson and Prof Roberts accepted that, if only cracks wider than 1mm
were repaired, the repair costs would be modest. Prof Roberts accepted these cracks could
simply be sealed.
[190]
For these reasons, the pursuer has failed to establish alleged defect 5.
Defect 6: the Procor 3 membrane and subsurface drainage at level 1
[191]
There are two distinct strands to this alleged defect: (a) whether the Procor 3
membrane is defective and (b) whether the sub-surface drainage system is faulty. (The
latter is described at para [33], above.)
[192]
The pursuer's case on defect 6(a), in respect of the Procor 3 membrane, appeared to
be predicated on two admincles of evidence:
1)
that there had been leaks into the back of the DW Sports retail unit (situated
along the north edge of the car park), from which it was inferred that the Procor 3
membrane was faulty; and
93
2)
Mr Clarkson's and Prof Robert's assessment at the April 2021 Investigation that
at the single location where the Procor 3 membrane was exposed (L4), it was
pliable - an assessment which was not shared by the others who were in
attendance (Mr Allan or Prof Robery) - and that a small hole had been found at
the same location.
[193]
Its case on defect 6(b), the sub-surface drainage system, is predicated principally on
the findings (or the interpretations of what those in attendance on behalf of the pursuer saw)
for L4 and L6 at the April 2021 Investigation and recorded above (from paras [70] to [77]),
and, perhaps to a lesser extent, on the historic leaks.
The pursuer's experts
[194]
In Clarkson 2, Mr Clarkson referred to the fact of leaks in the past into the DW Sports
unit (at paragraph 9.2.2). From this, he suggested that it "may be" that there are defects at
level 1 similar to those found in the Procor 3 membrane on level 3 (ibid). Mr Clarkson did
not contend that the whole of the Procor 3 membrane at level 1 had failed; his position was
that, as there had been leaks into a retail unit immediately below level 1, there must logically
be some defects in the Procor 3 membrane to have permitted this. Following the discovery
at the April 2021 Investigation of water above the Procor 3 membrane at L4 and L6,
Mr Clarkson surmised that this resulted in the Procor 3 membrane being softer than it
should be. He could not think of any other reasonable cause. He accepted in
cross-examination that there was no widespread failure of the Procor 3 membrane at this
level; that he could not say where this membrane was faulty; and that there had only been
one location where the Procor 3 membrane had been exposed (being L4). He nonetheless
maintained his position that something about the membrane was not correct, if it had
94
permitted leaks in the past and therefore it must be defective. He accepted that, at most,
there might be localised defects.
[195]
In relation to the allegation that the subsurface drainage at level 1 was defective,
Mr Clarkson had identified several areas at level 1 where the sub-slab drainage was not
functioning as it should and that water was being retained within the system that should not
be there. He attributed the cause to blocked drains. In his view the cause of the blockage, at
least for the drain examined at the April 2021 Investigation, was rubble from the time of the
construction of the car park. In relation to the source of the water, in his view this came
from level 3, the implication being that it also had to pass through the deck of level 2 in
order to find its way to the subsurface of the level 1 deck. He accepted in cross-examination
that he had not considered or excluded other sources of water, such as pipes. He also
accepted that in a photograph contained in Clarkson 1 he had misidentified this as showing
part of that membrane.
[196]
Prof Roberts' comments echo the pursuer's premise: that a product such as the
Procor 3 waterproof membrane "should not allow water to pass through it if it is correctly
installed" (Roberts 2 at paragraph 4.6). From this he concluded that the water ingress into
the DW Sports unit was most likely a failure in execution of the Procor 3 membrane and
requires further investigation.
The defender's experts
[197]
Prof Robery was one of those who attended at the April 2021 Investigation, although
he appears to be the only witness who also took the opportunity to inspect other areas of the
car park and Centre, including the DW Sports unit and to produce photographs of what he
observed on that occasion (together with verbal descriptions, annexed to Robery 2). From
95
his investigation (recorded in Robery 2) he found that there was no evidence of any active
leakage in the shop itself, the back office, the storage areas or the service corridor behind the
shop (see paragraphs 2.3.4 and 2.3.7). This was against a background where there were no
reports of active leaks into any of the retail units below level 1. From this he concluded:
"The evidence I have seen is that there is no leakage into the shop units at all and therefore
the Procor 3 is sound and watertight, and so does not need to be replaced at all." (See
paragraphs 3.2.25.2 and 5.2.5 of Robery 2.) In respect of the pursuer's experts, he stated:
"3.2.25.1 Neither Professor Roberts nor Mr Clarkson has any evidence showing
the Procor 3 is defective and is prone to leakage based on the inspections of 30 April
2021.
[...]
3.2.26 I also disagree with Professor Roberts that there is any evidence on which to
conclude, as he does, that leakage into shop units is `most likely a failure in execution
[of the Procor 3] and requires further investigation'. As I have stated above, there is no
evidence of any leakage into shops currently, or any evidence of defects in the
Procor 3. Therefore, in my opinion any extensive intrusive investigation or
replacement of the Procor 3 membrane would be completely unnecessary and
disproportionate." (Ibid)
From the foregoing, Prof Robery concluded that there was no evidence that the Procor 3
membrane was defective. Nor, in his view, was any evidence presented to establish "that
the Procor 3 membrane has failed or decomposed or is allowing standing water to penetrate
into the retail units below the level 1 car park" (Robery 2, paragraph 3.2.22).
[198]
In the absence of an ongoing or widespread leak from level 1, in Prof Robery's view
there was no justification for an intrusive investigation of the kind contemplated by the
pursuer's experts. The defender's other expert, Mr Davis, also supported that view, and he
recommended a good cleaning out of the drainage system (Davis 4, paragraph 3.29(h)).
96
[199]
As for the source of the water for the now-historic leaks which had occurred in the
DW Sports unit, in Prof Robery's view this could have come from blocked drains, rather
than any defect in the Procor 3 membrane (Robery 2, paragraph 4.2.17). He noted that
while there had been an active leak, there could have been testing carried out to determine
its source (eg by the use of what he described as "fugitive dye" (see Robery 2 at
paragraph 3.2.25.2)), but this had not been done by Mr Clarkson or any other person on
behalf of the pursuer (Robery 2, paragraph 4.2.17). In the absence of such investigations,
which could confirm or exclude various causes, Prof Robery characterized as "speculation"
Mr Clarkson's attribution of the historic leak into the DW Sports unit to an unspecified
defect in the Procor 3 membrane (Robery 2, paragraph 4.2.20). Prof Robery noted that there
had been a car wash which had operated on level 1 in the area above the DW Sports unit.
It may have been that the volume of water from that activity was such as to overtop the
drainage gullies at the perimeter of the level 1 deck.
[200]
In relation to Mr Clarkson's reliance on what he noted at L4 in the April 2021
Investigation, Prof Robery did not agree with Mr Clarkson's assessment. In his view, the
protection board was not disintegrating. He noted that Mr Clarkson took several attempts
to remove the board and expose the membrane. In his view, it was this activity in removing
the board that led to a small piece of membrane to be pulled away from the structural
concrete beneath (Robery 2, paragraph 2.2.7 to 2.2.8). In any event, the protection board was
there to protect the Procor 3 membrane during the installation of the insulation layer above
it.
97
Discussion of alleged defect 6
The evidence of occurrence and location of leaks
[201]
As noted above, the pursuer's case on defect 6(a) is largely premised on what is now
accepted to be an historic leak into one retail unit. Against that is the evidence that, while in
the past there had been regular water ingress into the DW Sports shop immediately below,
no further leaks had been reported since the remedial works were completed.
[202]
There was surprisingly little evidence of the precise location of the leak. As noted
above, only Prof Robery inspected the DW Sports unit in 2021. He described evidence of
historic water staining toward the rear of the unit, or its back storage area, which was at the
north-most edge of the unit. This would be adjacent to and below the perimeter drainage on
level 1 of the car park (eg as shown on figure 2.3 of Robery 1). Having done so, he found no
evidence of any active leaks into any area of the shop. In the course of the proof, it became
clear that the water ingress into the DW Sports unit had ceased by about the time of
completion of the remedial works. The pursuer's experts, Mr Clarkson and Prof Roberts
both accepted this. No witness suggested that there were any ongoing leaks from level 1.
[203]
The difficulty for the pursuer is what may reasonably be inferred about the state of
the Procor 3 membrane from the evidence. Mr Clarkson acknowledged that he was in no
position to say that any defect in the Procor 3 membrane at level 1 was wide-spread. At its
highest, Prof Robert's evidence was simply that the historic leaks merited investigation. The
problem for this part of the pursuer's case is that the absence of leaks for a period of 2 years
displaces its primary premise. Neither of the pursuer's experts addressed that fundamental
difficulty for the pursuer's case.
[204]
I next turn to the evidence of L4, which is the second adminicle underpinning the
pursuer's case in respect of defect 6(a), and on which Mr Clarkson placed considerable
98
reliance. As it appears in the plan to the experts' collated findings following the April 2021
Investigation (lodged as Joint Bundle no 193), the location of L4 is near the northernmost
perimeter of the car park and broadly above the back area of the DW Sports unit. I have
already noted above (at paras [70] ff) the differing views of those in attendance of what was
revealed at L4.
[205]
On the contested matter of the assessment of the state of the Procor 3 membrane
as found at L4 at the April 2021 Investigation, I prefer the evidence of Mr Allan and
Prof Robery. Prof Robery, in particular, was clearly the most knowledgeable about the
function of the various elements comprising the level 1 deck. So, for example, he explained
the make-up of the protection board; that it served a limited purpose for a very short period
of time and that its purpose was thereafter superseded; and he explained that the Procor 3
membrane was affixed to its underside. By contrast, Prof Roberts assumed it was meant to
serve an on-going function, hence his concern about its friable state (see para [71], above). I
also accept Prof Robery's description of the effort required to remove the protection board in
order to expose the Procor 3 membrane and that those actions may have damaged, or
changed the elasticity or feel of, the membrane - an explanation that was not challenged in
evidence. It is telling that the pursuer's experts did not seem to contemplate, or they
appeared willing immediately to exclude as a possible cause, the necessarily intrusive
investigation they were undertaking as having had any effect on the membrane found. The
final position of the pursuers' experts was that something was not right about the Procor 3
membrane (Mr Clarkson) or that the past leaks merited investigation (Prof Roberts).
[206]
There was very limited evidence in relation to the small hole detected at the same
location, which did not form a major plank of the pursuer's case on defect 6(a). From certain
questions posed in cross-examination, it appeared at least implicit in the pursuer's case that
99
the hole was not created by the intrusive investigations at L4, but that it had existed prior
to the April 2021 Investigation and had been "found" by that exercise. Had the hole
Mr Clarkson identified in L4 existed prior to the April 2021 Investigation, or affected the
performance of the Procor 3 membrane, one would have expected the leak into the DW
Sport unit to have manifested itself even after completion of the remedial works. It has not.
In any event, regardless of whether the hole existed prior to, or was caused by, the
April 2021 Investigation, the existence of a small hole in a waterproof membrane does not
support an inference that the membrane itself was substantially defective in a sense relevant
to the remedy the pursuer seeks.
[207]
In my view, neither Prof Roberts nor Mr Clarkson has demonstrated that the
Procor 3 is defective and prone to leakage based on the April 2021 Inspections. The absence
of water ingress into the DW Sports unit, whose location broadly corresponds with L4,
provides a strong contra-indicator to the pursuer's premise that, in fact, the membrane is
operating as it should at level 1. The pursuer has not established the nature of any alleged
defect, its location or extent. Mr Clarkson accepted this in cross-examination.
[208]
One of the disputed matters relative to defect 6(b) is the source of the water which
was found trapped in layers of polythene above the Procor 3 membrane during the
April 2021 Investigation at location L6 or which flowed back into the core hole at L4. The
parties had competing theories as to the source of the water, but there was no evidence to
establish this with any certainty. The pursuer's position appeared to be that the water had
come from leaks in upper levels of the car park. Prof Roberts appears to have assumed this,
too, when he noted the ponding in some of the disabled bays at level 1, although he could
not state with any confidence what the likely source of that water was. The defender's
position is that this water was most likely produced by a car wash which operated for some
100
years in the northwest corner of level 1, immediately above the area where the leaks
occurred in the retail unit. (From this Prof Robery had surmised that the water ingress into
the retail unit may have resulted from run off from the car wash overtopping the membrane,
ie at its outer edges or where it lapped up against an intrusion (such as a stanchion.))
Mr Clarkson did not appear to contemplate the car wash as the source of the leak or of the
water found trapped above the membrane at level 1. This is a striking omission, given that
the operation of the car wash at level 1 was noted in the 2016 WJM Letter (see para [90(1)],
above), and included as appendix 11 to Clarkson 2, and was referred to by Mr Mackie (see
para [108(3)], above). Of the possible sources of that water, I am not persuaded that the
source of this is from level 3. This would necessarily mean the water had to have passed
through level 2. While Mr Anderson referred to water pouring down through the deck
levels, this was not supported by any independent evidence and was, like other features of
his evidence, exaggerated.
[209]
It is in this context that the question of cleaning and maintenance of the drains arises.
Again, I prefer Prof Robery's observations to those of Mr Clarkson in respect of the
condition of the drains examined at the April 2021 Investigation. The pertinent fact is that,
once the drain was cleared of its obstruction, the accumulated water drained away. I also
agree with the defenders' experts that keeping drains clear is a matter of maintenance. I am
not persuaded that there is any defect in the drains, by reason of the construction or
workmanship, as alleged in defect 6(b).
[210]
Furthermore, whatever the source of the water found trapped above the Procor 3
membrane at the level 1 deck, it has not been established that the presence of water at
sub-surface level, found at L4 and L6, itself posed an ongoing risk to the viability of the
membrane. Indeed, the very fact that some standing water was trapped between several
101
layers of polyurethane at L4, but none of which had seeped below, is a strong indicator that
the membrane was in fact performing adequately. Other than Mr Clarkson's observation
that the membrane was pliable, there was no evidence that the membrane was being used or
relied on for a purpose outwith its design capacity. There was no challenge to Prof Robery's
description that the Procor 3 membrane was designed to bear a great volume and weight of
water and was waterproof, even if it was not specifically marketed as a waterproofing
product or treatment. There was no evidence to support a conclusion that the Procor 3
membrane at level 1 was defective. On this matter, Prof Robery concluded in Robery 2, that
"there is no evidence presented that the Procor 3 membrane has failed or decomposed or is
allowing standing water to penetrate into the retail units below the Level 1 car park" (at
paragraph 3.2.22). In light of that evidence, any asserted failure of the sub-surface drainage
at level 1 ceases to have any adverse effect on, or risk to, the car park
Defect 7: The failure to complete a structural movement joint
[211]
The final defect advanced was an alleged failure to complete a structural movement
joint on level 3, on which the evidence was minimal. No witness suggested that the
movement joint should not have been installed. Mr Davis was not challenged on his
evidence that its absence affected the pursuer's use of its offices. A blockwork wall was
constructed over the incomplete joint. This would require first to be taken down in order for
the joint to be completed. The common view (including Mr Clarkson) was that this was a
relatively minor matter.
102
Discussion of defect 7
[212]
The movement joint was not completed. Accordingly, there was a technical
non-compliance with the Specification or a failure of workmanship. The pursuer has proved
this defect. However, in the context of the construction of a car park, such an omission -
especially 13 years after its construction - may be characterised as de minimis. I accept the
defender's submission that alleged defect 7 is plainly a matter which could be fixed very
quickly and cheaply and does not afford a basis to find that the defender is in material
breach of the Agreement.
[213]
I turn to consider the implications of my findings in respect of the remedy the
pursuer seeks. Before doing so, I should briefly address parties' legal submissions. I should
record that I have also had regard to, but need not record, the parties' full and careful
submissions lodged at the end of the proof.
Discussion of the legal issues and their application to the findings in respect of the
alleged defects
The construction of clauses 2.4 and 3.1
[214]
Parties disputed the proper construction of clause 3.1. The defender submits that
the clause 3.1 obligation to "procure" required no more of the defender than to appoint a
competent team of professionals and building contractor to construct a sou nd car park, and
to secure collateral warranties in favour of the pursuer. I accept the pursuer's submission
that this repeats the argument the defender advanced without success at the debate before
Lord Woolman. His decision is not res judicata, and the issue is at large for me. In my view,
the pursuer's submission that the defender's reading is fundamentally inconsistent with
clauses 5 and 9.2 of the Agreement (summarised at paras [6] to [8], above) is well-founded.
103
If the defender's reading were correct, it would deprive the tenant's rights to inspection and
the whole dispute mechanism in clause 5 of any utility. Nor can the defender's reading be
reconciled with its liability (under clause 9.2) to procure that all defects are made good
during the defects liability period. It would have no liability arising under clause 9.2, if its
duties were exhausted upon "procuring" a professional team to construct the car park. I
also accept the pursuer's submission that "procure" should be given a straightforward
meaning, namely "to cause the desired result to be brought about" (eg of good
workmanship or the use of specified materials). In relation to clause 2.4, there was no
dispute as to its construction and, as Mr Howie acknowledged, this clause had little role to
play given the pursuer's concession. It was now relied on only in respect of what remained
of alleged defect 3, the waterproofing to the head of the level 3 ramp.
Personal bar
[215]
The defender's plea of personal bar appeared to be based on the limited evidence
of Mr Heller (see para [99], above). At best, he was equivocal about whether the defender
would have proceeded with the remedial works if the pursuer had indicated its intention to
rescind the Agreement. Otherwise, on the evidence there is no unqualified representation
by the pursuer that it would not treat any breach by the defender as non -material. There is
no adequate foundation in the evidence to meet the requirements for personal bar, as set out
in the classic formulation in Gatty v Maclaine of Lochbuie 1921 SC(HL) 1.
The lateness of the pursuer's claim
[216]
The defender's other legal argument was that the pursuer's claim comes too late,
coming as it does more than a decade after the construction of the car park and the pursuer's
104
occupation throughout that time. The pursuer's reply is that a decision to rescind a contract
has to be made in the full knowledge of the matters which would entitle it to rescind. The
pursuer submits that in this case, until receipt of the Repair Notices, the pursuer did not
know (or could not be deemed to have known) of defects affecting levels 1 and 2. This was
spoken to by Mr Tidball, who described his "shock" upon receiving the 2018 Repair Notice
shortly after completion of the remedial works which followed the pursuer's success in the
prior litigations (see para [82], above). This action was duly raised in 2019. I accept as
well-founded the pursuer's submissions on this issue.
Consideration of whether the pursuer has established material breach or breaches going to
the root of the parties' Agreement
What must be established in order to be entitled to rescind a contract?
[217]
It is common ground that not every breach of contract will justify rescission, but that
a party seeking to rescind a contract must demonstrate a breach of a term going "to the root"
of the parties' contract (the dictum is that of Lord President Dunedin, in Wade v Waldon 1909
SC 571 at 576). Whether a particular term goes "to the root" of the contract is a question of
construction: Gloag on Contract (2
nd
ed) at p 63, cited with approval by Lord Jauncey in
NV Devos Gebroeder v Sunderland Sportswear Ltd 1987 SLT 337 at 337F-G (whose remarks
were undisturbed by the Inner House, reported at 1990 SC 291). A term may be agreed by
the parties to be material (eg a provision that "time is of the essence"). By its nature as a
metaphor, the phrase "going to the root of the contract" is an open -textured and flexible test
to be applied having regard to all of the circumstance. Therefore, it may also be important
to consider the term concerned and its inter-relationship to other terms in the overall context
of the parties' agreement. In this case, for example, the effect of the onerous repairing
105
obligations assumed by the pursuer is to transfer the consequences of any breach by the
defender to the pursuer. The effect of that term and an evinced intention on the part of the
defender to hold the pursuer liable under such a clause for some defect in the condition of
the car park (at least if the defect is established to have been attributable to a prior breach of
the defender), is likely to be relevant to and inform the assessment of the materiality of any
breach on the part of the defender.
[218]
Once a term has been construed (or stipulated) as going to the "root of the contract",
then the question of whether its breach is material is treated as a question of fact (see, eg, the
discussion in McBryde, The Law of Contract in Scotland (3
rd
ed) at paragraph 20-96). That
form of enquiry is likely to involve consideration of matters extraneous to the contract term
said to have been breached. While one of the points that Mr Borland made on behalf of the
defender in submissions was that the pursuer had not proved it had sustained any loss or
that it had even incurred any expense by reason of any breach on the part of the defender, it
will be recalled that the materiality of a breach is not measured solely by the pecuniary
consequences of the breach for the innocent party (per Lord Jauncey in NV Devos Gebroeder,
cit supra).
[219]
Mr Howie suggested that the breach must be so material, in the nature of the term
breached or in its adverse effect on the innocent party, as to render the contract other than
what the parties contemplated, and thus to make it unfair to continue to hold the innocent
party to it. That submission must be understood in its context, namely, that in assuming
an onerous repairing obligation in the lease, the pursuer assumed the risk of having to
undertake substantial works or repairs, which were not foreseeable at the time of the
Agreement, even if the need for those repairs flowed from the defender's breach. What is
clear is that breach of a term going to the root of the contract is not a low threshold.
106
Mr Howie accepted that in order for the pursuer to obtain the declarator it seeks, it must
establish that the breaches of clauses 2.4 and 3.1 of the Agreement, either singly or in
combination, pass that threshold.
Application of the legal test to the findings in fact
[220]
I have summarised the pursuer's position above (at paras [39] to [42]). As I have
recorded in my consideration of each defect, the pursuer has failed to prove all but two of
the defects it alleges. The breach constituting defect 7 may properly be described as de
minimis. The only defect predicated on clause 2.4 was defect 3, which was maintained only
in an attenuated form. In relation to clause 3.1, at most, the pursuer has established an
immaterial breach which has had no appreciable impact on the operation of the car park and
remediation of which would involve a very modest figure. In those circumstances, there is
no prospect of the pursuer establishing a breach of the requisite quality to obtain the remedy
it seeks. That conclusion is enough to dispose of the action . However, as I have had some
regard to Mr Clarkson's evidence, it is appropriate that I determine the defender's objection
to Mr Clarkson. (No other objections made in the course of the proof were maintained in
submissions. In any event, having regard to the nature of the evidence heard under
reservation of these objections, none of them was well-founded.)
The Clarkson Objection
[221]
In brief, the principal grounds of the Clarkson Objection were:
1)
that by reason of his role as an adviser to or agent of the pursuer in relation to the
remedial works to level 3, or of having an input into the design process (because
107
of his suggestion to replace the channel drains with open gullies), his
independence was compromised;
2)
that he purported to express a view on some of the obligations in the Agreement;
3)
that some of the language used in his witness statements (quoted in paragraph 5
of the Clarkson Objection) reflected that shift in perspective, as did Mr Clarkson's
comments on and challenges to the evidence of the defender's own witnesses in
his witness statements; and
4)
that Mr Clarkson's role as the pursuer's representative or adviser in relation to
the remedial works was also spoken to by some of the defender's own witnesses.
For these reasons, the defender's submission was that Mr Clarkson should not be regarded
as an expert or skilled witness and his evidence was inadmissible (treating those qualities as
a threshold to admissibility: Kennedy v Cordia (Services) LLP, 2016 SC 59 (UKSC) ("Kennedy"),
per Lords Reed and Hodge at paragraph 51.
[222]
The pursuer responded to the Clarkson Objection. It explained that Mr Clarkson's
involvement in the remedial works was necessitated by the defender's failure to operate
clause 5 of the Agreement (which provided a mechanism for the pursuer to inspect and
comment on construction works to the car park before certificates, such as for practical
completion or making good defects, could be issued). Mr Clarkson's role was to monitor the
remedial works, as he had the requisite expertise and also in -depth knowledge gained from
his role as an expert in the prior litigation, in order to ensure that those works complied with
the Agreement and Specification. In respect of the some of the language used by
Mr Clarkson, some of this was taken out of context. Otherwise, his use of the word
"advising" had to be understood as reflecting his role in monitoring the remedial works. He
had stated the scope of his instructions, which were those engaging him as an expert. He
108
was an engineer with over 39 years' experience, and was an experienced expert witness. In
relation to Mr Clarkson's witness statements (as opposed to his report), it was only fair that
he be entitled to respond to the criticisms levied against him by the defender's witnesses to
fact (as opposed to their experts), and which he did in his own witness statements. These
did not form part of his expert reports. Finally, in his references to the terms of the
Agreement he was providing the framework for his comments.
Discussion of the Clarkson Objection
[223]
The defender's challenge was made under reference to the Supreme Court's decision
in Kennedy. If a challenge to an expert's independence is upheld, the effect is to render his or
her opinion evidence inadmissible. Given that the practice in the Commercial Court is to
hear evidence under reservation and deal with the merits of any objection at the stage of
submissions (the practice is noted in Scots Road Partnership Limited v The Scottish
Ministers [2019] CSOH 113 at paragraph 32), that would mean such a finding is given effect
after the evidence has been led and considered. For my own part, absent a very clear case
that an expert has ceased to be impartial and independent, it is unlikely that a court could
make such a finding ab ante and without the benefit of hearing and considering the evidence
of the expert, including it being tested by cross-examination.
[224]
While Mr Borland was critical of Mr Clarkson for making extensive reference to the
terms of the Agreement, so too did Prof Robery. In each case, it is explicable that the expert
concerned would wish to relate his comments to the contractual framework (as understood
by or explained to the expert).
[225]
Having heard and considered the whole evidence, including Mr Clarkson's evidence
over the course of two days (the majority of which was cross-examination) I find that the
109
defender's challenge is not well-founded. First, Mr Clarkson's initial involvement was his
instruction as an expert for the pursuer in the prior litigations, and the subsequent remedial
works, which related to level 3. In this litigation, only one of the defects alleged related
to level 3 in any significant way (defect 1, the issue of ponding). Nor do I find that
Mr Clarkson's role in respect of the remedial works compromised his standing as an expert.
It was not an adversarial role; in some instances his suggestions (eg the use of a valley
gulley) were followed by the defenders; his purpose, in common with others, was to
achieve the best car park in the circumstances. While I have preferred the evidence of other
witnesses on certain matters of fact (eg about the state of the Procor 3 membrane at L4),
these are on grounds that do not arise from the witness' expertise or opinion evidence, but
upon an assessment against other factual evidence I have accepted. Accordingly, while
some of the language used in Mr Clarkson's witness statement, while unfortunate (as
Mr Howie accepted), this is of no moment. To the extent that, on occasion, Mr Clarkson
expressed strong views on certain issues, or on matters outwith his direct expertise or
experience, these matters go to weight, not admissibility. Notwithstanding the defender's
forcefully advanced objection, I am not persuaded that it is well-founded or justifies the
exclusion of Mr Clarkson's evidence. On matters of opinion, I have preferred the evidence
of others to that of Mr Clarkson. This was because I found the expert whose evidence I
preferred (principally, Prof Robery) to have a deeper knowledge of the subject-matter under
consideration, to have undertaken more thorough investigations, to have expressed himself
with more care and precision and I have found that his opinion was better supported by the
other evidence. I do not need to address this as a matter of weight. It is in the nature of
adversarial litigation, where contested matters may turn on opinion evidence, that the
110
evidence of one expert is preferred to another. Such a finding does not infer that any of the
criticisms advanced by the defender in the Clarkson Objection was well-founded.
Decision
[226]
For these reasons, the pursuer has failed to establish its entitlement to rescind the
Agreement. I shall issue an interlocutor to that effect, but will reserve the question of
expenses meantime.
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