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The Court of Session recently rejected a novel claim brought by a contractor against a third party who caused delay to a construction contract. Stuart Pemble investigates
During my time as one of the editors of Legal Notes, I have not been slow to criticise judges who don't follow precedents that should be binding on them. So, I was pleasantly surprised to read Lord Bannatyne's opinion in Cruden Building & Renewals Ltd v Scottish Water [2017] CSOH 98, where an attempt to establish a claim for delay caused by a leaking sewer fell foul (no pun intended) of wellestablished legal precedent.
The robust way in which the judge was able to reject the argument also suggests that the decision will be remembered as an interesting judicial footnote rather than the first in a new line of cases.
The facts
In 2015, Cruden Building (the pursuer) began constructing a housing development at Prospecthill Circus, Toryglen, Glasgow. The ultimate client was Glasgow Housing Association Ltd, which had entered into a development and licence agreement with another Cruden company - Cruden Holdings (West) Ltd - in 2013. Cruden Building then carried out the construction on Cruden Holdings' behalf, although the judgment is silent as to what, if any, agreement was reached between the two group companies.
In March 2015, sewage leaked onto two separate parts of the site for between 13 and 15 weeks. It took another four weeks for the bacterial contamination to die off; a total delay of between...