Martin Cherrie and Amy Paterson initially raised an action against Kevin Vaughan, trading as VIP Joinery, to cover the cost of restoring their property. The defender and appellant argued that the sheriff had made findings in fact which were not open for him to make, and that he had erred in quantification of the loss.

The appeal was heard by Sheriff Principal Nigel Ross, with Appeal Sheriffs Thomas McCartney and Derek O’Carroll. MacKenzie, solicitor advocate, appeared for the defender and appellant and K Young, advocate, for the pursuers and respondents.

Perpendicular joists

In 2017, the pursuers decided to convert the attic space in their home. The defender was instructed to carry out the work for an agreed price of £20,000, payable in staged payments of £2,000 per week. Two months after the work commenced, the pursuers put the defender off the job due to concerns about the quality of the work, having paid him £14,000 up to that point. It was determined that the remedial work required would require stripping out all of the work done by the defender and starting the build again.

The pursuers raised an action seeking damages for breach of contract, which the defender opposed on grounds of relevancy and specification. Decree was granted by the sheriff in favour of the pursuers for the sum of £36,000, comprising £26,000 to restore the property and £10,000 for inconvenience and distress.

The appeal concerned a finding in fact by the sheriff that the structural drawings for the loft conversion were inaccurate as they failed to take account of joists running perpendicularly to the joists running from the front of the building to the back and that these joists were obvious upon inspection. However, the only evidence on this point came from an expert witness led by the defender, Mr Grant, rather than the pursuers. While the pursuers had objected unsuccessfully to this evidence being led, it in fact ultimately bolstered their case.

For the defender it was submitted that the issues with the perpendicular joists were critical to the pursuers’ case. In essence, the sheriff found that the original design was fundamentally flawed from the outset and elided that issue by holding that the defender was responsible for bringing these issues to the attention of the engineer and the architect. The sheriff had erred in making findings not open to him on the pleadings before him.

Counsel for the pursuers responded that there was nothing in the pleadings capable of giving notice to them of a defence resting upon the specific claim that the presence of perpendicular joists in the attic structure had been missed by the engineers. The absence of such averments worked against the defender. This positive defence as advanced did not match the defence on record which was pled in general terms and ignored the perpendicular joists.

Only reliable figure

Delivering the opinion of the court, Appeal Sheriff McCartney said of the disputed evidence: “In our view the error made by the sheriff is that he allowed this evidence at all. The pursuers’ objection to evidence in support of the specific assertion of a design fault in respect of perpendicular joists should have been sustained and evidence on this not admitted.”

He continued: “The evidence of Mr Grant in respect of the perpendicular joists having been allowed, there is no unfairness to the defender in the pursuers responding with a legal submission and the sheriff accepting that submission in his application of the law to the facts as found by him based upon the evidence led. We are not prepared to entertain a subsequent submission from the defender that allowing this evidence was unfair, or that the sheriff went too far in basing his findings in law upon it.”

Assessing quantification of damages, the Appeal Sheriff said: “While we accept that the sheriff was entitled to attempt to reach a figure to reflect the cost of necessary remedial work, and to make inferences from the evidence before him, we have not been able to accept that the sheriff’s assessment of £26,000 has a sufficient evidential basis.”

He concluded: “In the very special circumstances of this case, given the shortcomings of how the case was pled and presented and the absence of clear evidence attesting to the loss suffered by the pursuers on a cost of cure basis, the sum of £14,000 is the only reliable figure on which to assess damages. Therefore we shall sustain the appeal to the extent of reducing the sum awarded.”

The appeal was therefore allowed only to the extent of recalling the interlocutor for payment and granting decree of new in the sum of £14,000, plus £5,000 to each pursuer for inconvenience.