Galliford Try is battling an £11.5m lawsuit over a defective funicular rail line in the Scottish mountains.
Morrison Construction, which is now owned by Galliford Try, scooped a £17m contract to build the 1,970-metre-long Cairngorm Mountain Railway back in 1999. The funicular opened in December 2001, five years before Galliford Try bought Morrison in 2006.
But legal documents show that the client, the Highlands and Islands Enterprise (HIE), is claiming it was forced to close the funicular in October 2018 after it was alerted to “potentially serious structural issues”.
The case will now go to court after judge Lord Sandison said evidence needed to be heard to reach a conclusion.
Morrison was initially engaged on the project as the construction contractor, alongside civil and structural engineer AF Cruden Associates. HIE is claiming that as part of the contract, Cruden was engaged to inspect the railway “regularly” and to identify any defects on the rail, but it did not raise any concerns. From 2008 the firm was re-employed to continue inspecting the structure regularly.
In 2014, it was replaced in that role by civil and structural engineer ADAC Structures, which the following year reported “potentially serious structural issues” that meant the funicular had to be closed in 2018.
HIE alleges that it was “presented from the outset with a railway which was defective”, and has now launched a £11.5m lawsuit against Galliford Try. It alleges that, as part of the contract, Morrison had to “co-ordinate, supervise and administer the design work” done by AF Cruden.
AF Cruden was liquidated in 2020 and is not represented in the case.
HIE says it had to incur “major repair costs” to mend the funicular, which reopened in January this year. It also argues that it was not aware, and could not have been aware, of the defects between 2001 and 2014 because it was “labouring under error induced by” both Morrison and AF Cruden as to the state of the railway itself.
Galliford Try is claiming that for it to be liable, it would have had to be notified of the defects within five years of its handover of the asset, which would be December 2006. Instead, legal action was only started in June 2019. It also argues that it did notify the HIE of cracking to the scarf joints on the site.
However, HIE argues that Galliford Try and AF Cruden should have issued inspection reports showing that “the railway was not free from material defects”. Regarding the scarf joints, it claims those specific defects were “immaterial in character” and would only require normal maintenance to rectify. It did repair the scarf joints themselves. Other issues that were not raised were the reason for the funicular closing, it adds.
The legal action hinges on whether HIE used “reasonable diligence” to be sure the rest of the structure was safe, especially following the warnings it had regarding the scarf joints.
Galliford Try declined to comment on the case.
A spokesperson for HIE said: “There is a clear public interest in seeking to recover public investment in the reinstatement of the Cairngorm funicular. It would not be appropriate to comment further while legal proceedings are ongoing.”