The local authority raised an action at the Court of Session against four companies which it instructed to help with the construction of 64 homes in Gorebridge.
The homes at Newbyres Cresent and Gore Avenue had to be demolished in 2016 after dangerous gases from disused mines started seeping into the properties. A family had to be rushed to hospital with suspected carbon dioxide poisoning during the scare which prompted councillors to take legal action.
In August 2017, a judge dismissed the action against a firm called Bracewell Architects. In June 2018, a company called RPS Planning and Development Ltd was allowed to be removed from the action.
Midlothian Council were then left with the prospect of suing two companies - Raeburn Drilling and Geotechnical Ltd, and Blyth & Blyth Consulting Engineers Limited. However, in a written judgement issued at the Court of Session today (Wednesday) judge Lord Doherty ruled that Blyth & Blyth should no longer remain part of the action.
Lord Doherty said that Midlothian Council raised the action against the firm in September 2018 - more than five years after it became aware of problems at the development. The judge ruled that strict rules regarding court actions in Scotland meant that the local authority should have raised the action within five years.
He concluded that the action should be dismissed.
Lord Doherty wrote: “In my opinion, for the foregoing reasons, it follows that the pursuer was aware of having suffered loss, injury or damage more than five years before the action was raised on September 4 2018; and that accordingly, the obligation of the fourth defender, to make reparation has been extinguished. That is sufficient to decide the case.”
The case first hit the headlines in September 2013 when people at the development started feeling unwell.
The multi million pound development had been completed in June 2013 without the installation of protective gas membranes at the homes. Experts reckoned the gas penetrated homes in the former mining village due to a 25 year old build up of pressure.
After evacuating residents, the council decided in 2014 to demolish the houses and rebuild the properties with protective gas membranes.
And the local authority also decided to sue the companies involved in the construction of the homes for £12,077,080 - the cost of the reconstruction. However, the local authority didn’t raise the action against Blyth & Blyth until last year.
The council alleged that the firm’s workers didn’t carry out proper investigations of the site of the housing development.
It further alleged that an “appropriate” assessment would have revealed the risk of gas penetrating the homes.
Lawyers for the firm told Lord Doherty that the action centred on the firm’s alleged wrongdoing which is said to have taken place between 2006 and 2009.
The company’s legal team said Midlothian Council should have raised the action before June 2014 and called for the action against it to be dismissed. Lord Doherty agreed. He wrote: “I think the appropriate course is to... grant decree of dismissal.”
The council is now able to sue only one firm - Raeburn Drilling and Geotechnical Limited.