Commercial judge finds reporter instructed to report on repair issues in commercial lease dispute had not completed remit

About this case:

• Citation:
  [2025] CSOH 25
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Sandison

Rutland Court Real Estate leased a property to Anderson Strathern LLP and claimed that it was not left in a state consistent with performance of the defender’s repair and maintenance obligations. Aspects of this claim were remitted to a chartered building surveyor, whose initial findings were objected to by the pursuer.

The case was heard by Lord Sandison, with MacColl KC appearing for the pursuer and Thomson KC and Boffey, advocate, for the defender.

Failed to exhaust jurisdiction

The reporter was tasked with determining whether alleged wants of repair, including damage to curtain walling and cooler systems, were present at the termination date of the lease, whether their presence on that date was the result of breach of contract on the part of the defender, whether the remedial works suggested by the pursuer were necessary to remediate any such wants of repair, and what the reasonable costs of remediation would be. His draft report was provided to the court on 10 January 2025.

Prior to completing the draft report, the reporter indicated to the court that he would prefer to instruct expert advice in relation to certain issues arising out of the mechanical and electrical works. On 26 November 2024 a commercial judge refused to authorise such assistance, considering it outwith his remit. In the draft report, the reporter stated he could not provide answers to all of questions on costs, observing that some of the costs could only be ascertained by a contractor’s quantity surveyors.

On behalf of the pursuer, it was submitted that the reporter had failed to exhaust his jurisdiction. At best, the present draft of his report was incomplete. In light of the reporter’s response to the pursuer’s note of objections, it indicated that it was content to allow him to engage a quantity surveyor to assist him in relation to the curtain walling, but wished him to determine the issues concerning the chiller units on his own.

For the defender it was submitted that the proceedings before the reporter were fundamentally adversarial in nature. The onus of proving the existence of wants of repair and the reasonable costs of remediating them fell squarely on the pursuer. To the extent that the pursuer failed to produce reliable or cogent evidence of its reasonable costs before the reporter, it was entirely unsurprising that he was not able to confirm a figure constituting a loss.

Not deputy judge

In his decision, Lord Sandison said of the reporter’s remit: “Any want in the material made available to the reporter, or otherwise sought out by him in terms of the joint remit, which led to him being unable to answer question 3 [on wants of repair] positively in respect of any matter, did not absolve him from the responsibility of answering question 4 [on reasonable costs]. As has been seen, an answer to that question is required regardless of the answer to question 3, and furthermore that answer must be given regardless of the adequacy of the material before the reporter.”

He continued: “The reporter is not some variety of deputy judge; rather, where the terms of his remit permit or indeed require, his appointment entails the deployment of his skills and experience so as to provide a more efficient (and potentially more accurate) determination of the remitted matters than a judge could reasonably be expected to furnish. Whether or not that was quite the situation subjectively contemplated by both parties when the terms of the joint remit were settled, an objective construction of its terms permits of no other result.”

Determining whether the reporter should be allowed any third-party assistance, Lord Sandison said: “The facility of interviewing individuals so as to obtain relevant information would not in my view extend to the length of engaging persons to consider matters and express their own professional opinions to him. However, if he thinks that asking the parties to instruct more or different professional advisers in order to produce material which he reasonably considers necessary, available or appropriate to enable him to discharge his functions, then he may do so. Directions to that effect will be provided to him.”

He concluded: “If the reporter is quite as adrift on the issues of the curtain walling and the mechanical and electrical installation as his communication to the court suggests, then it may prove very difficult for him to steer a safe course amongst each such Scylla and every such Charybdis capable of wrecking his enterprise, especially if parties are unwilling to provide reasonable assistance to him.”

Directions to the above effect were therefore issued by the court.