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HIE given go-ahead to continue legal action over 'construction failures' of Cairngorm funicular

By Gavin Musgrove

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The Cairngorm funicular is now running once again at the ski resort.
The Cairngorm funicular is now running once again at the ski resort.

Highlands and Islands Enterprise is seeking damages of more than £11.5m for alleged failings in the construction of the Cairngorm funicular.

The figure is revealed in a written judgment after a bid by defendants Galliford Try Infrastructure Ltd to have the action thrown out was rejected by Lord Sandison at the Court of Session.

HIE has said that the public agency was 'presented from the outset with a railway which was fundamentally defective, on which it will now have to incur major repair costs'.

The matter is now due to proceed to a proof hearing later in the year.

Galliford Try Infrastructure had tried to have the action dismissed claiming that it was time-barred.

But HIE said that it could not have been aware of the safety issues until after 2014 when the original structural engineer AF Cruden Associates Ltd was replaced by ADAC Structures.

They subsequently highlighted problems with the piers of the two kilometre Cairngorm railway viaduct.

The public agency said until then it was 'labouring under error induced by them (the defenders)' which is why they had not acted earlier.

Outlining the case, the papers state: "The pursuer (HIE) claims that in the years between completion of the works and 2008 the second defender (AF Cruden Associates) carried out a number of inspections of the railway and reported no significant concerns about what it had observed to the pursuer or to the then lessee of the railway, Cairngorm Mountain Limited.

"By 2008 the lease arrangements had been altered and the pursuer engaged the second defender directly to continue to carry out regular inspections of the railway and to identify any defects or required repairs and maintenance.

"The second defender produced reports following its inspections until it was replaced in that role after 2014 by a company called ADAC Structures Limited.

"In 2015 ADAC reported on potentially serious structural issues that it had observed during its inspection of the railway.

"Its concerns mounted in the course of subsequent inspection cycles until they were regarded as sufficiently serious to warrant suspension of the railway operations in 2018."

HIE maintained that Galliford Try Infrastructure was obliged by its contract 'to co-ordinate, supervise and administer the design work' of AF Cruden Associates Ltd.

Senior counsel for Galliford Try Infrastructure had argued that any claim for losses claimed to have been a result of the defects of the railway should have been identified by HIE before it came into operation on December 24, 2001.

HIE would then have had five years from this date to take legal action but this did not start until June 11, 2019 and therefore the claim should be rejected.

They also claimed that certain cracking to scarf joints on the structure of the railway had been noted in the course of AF Cruden Associate's inspections and had been reported to HIE who paid for the repairs.

The public agency had responded that the fixes carried out were within the ambit of normal maintenance requirements.

Related articles:

Cairngorm funicular finally starts running again after long absence

OPINION: Get on board with the return of the Cairngorm mountain railway

Repair bill for Cairngorm funicular expected to come in well over-budget at £25m

The Cairngorm funicular finally returned to operation at the end of January after repairs costing in the region of £25m.

The full written judgment for the hearing can be read here

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