Lost evidence results in lost case

Action dismissed in absence of vital production lost by pursuers' solicitors

News, 9 February 2007

The disappearance of a piece of copper piping borrowed from the court by the pursuers' solicitors led to an action being dismissed at the Court of Session today.

Peacock Group Ltd, tenants of a unit in the Portland Gate shopping centre, Kilmarnock, were suing for damage caused by flooding some months after the completion of shopfitting works. Their contractors, Railston Ltd, subcontracted the plumbing work to William Murchland & Co, and called them into the action as third parties when sued by Peacock.

Peacock claimed that joints in the pipe had not been properly tightened, which led to the flood. The plumbers claimed that the joint could not have lasted as long as it had if that had been the case.

After the section of piping was lodged as a production, it was borrowed by the pursuers' solicitors Simpson & Marwick, and examined by an expert, who reported that there were no marks on the pipe such as would have been present if the joint had been properly tightened. The defenders had also been able to examine the pipe, but the third party had not.

Resisting the third party's motion for decree in its favour, Peacock argued that it was important that the piping had actually been lodged and that two parties had been able to examine it. But Lord Drummond Young, who said the solicitors had been "commendably candid" in explaining the loss, ruled that as decided in the 1987 Scottish and Universal Newspapers case, secondary evidence of the state of the pipe could not be admitted where a party's own representatives had caused its loss.

The pursuers and defenders, he pointed out, both blamed the plumbers for the loss and it would be unfair to expect them to rely on the defenders' report.

He ordered that the action be dismissed, leaving it open to Peacock to bring another action if the pipe came to light or they decided to proceed on other evidence.

Lord Drummond Young's decision can be read at http://www.scotcourts.gov.uk/opinions/2007CSOH26.html .