West & Anor v Ian Finlay & Associates (a firm) [2014] EWCA Civ 316 (27 March 2014)

West & Anor v Ian Finlay & Associates (a firm) [2014] EWCA Civ 316 (27 March 2014)

The NCC was clear and applied to limit IFA's liability by reference to the responsibilities of all other contractors, including the main contractor. The clause was not unfair under the UTCC Regulations nor unreasonable under UCTA, given the parties' equal bargaining power, the clause's prevalence in standard forms, and the Wests' sophistication. The interest rate awarded was excessive and should be reduced to 4.5% over base. Damages for distress and inconvenience should be reduced to reflect an 18-month period.

Citation
[2014] EWCA Civ 316
Parties
Claimant/respondent: Stephen West; Claimant/respondent: Carol West; Defendant/appellant: Ian Finlay & Associates (a firm)
Jurisdiction
England and Wales
Judgment Date
27 March 2014
Procedural Posture
Appeal (civil) / Court of Appeal Judgment on Appeal From High Court (tcc)
Outcome
Appeal allowed in part
Legal Topics
Limitation of Liability, Unfair Contract Terms, Professional Negligence, Interest on Damages, Damages for Distress and Inconvenience
Contract Law Consumer Protection Construction Law Limitation of Liability Unfair Contract Terms Professional Negligence Interest on Damages Damages for Distress and Inconvenience

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Parties

Stephen West

Claimant/respondent

Carol West

Claimant/respondent

Ian Finlay & Associates (a firm)

Defendant/appellant

Procedural Posture

Appeal (civil) / Court of Appeal Judgment on Appeal From High Court (tcc)

Legal Issues

  1. 1 Proper construction and effect of net contribution clause (NCC) in architect's appointment agreement
  2. 2 Whether NCC is unfair under Unfair Terms in Consumer Contracts Regulations 1999 (UTCC Regulations)
  3. 3 Whether NCC is unreasonable under Unfair Contract Terms Act 1977 (UCTA)

Ratio Decidendi

The NCC was clear and applied to limit IFA's liability by reference to the responsibilities of all other contractors, including the main contractor. The clause was not unfair under the UTCC Regulations nor unreasonable under UCTA, given the parties' equal bargaining power, the clause's prevalence in standard forms, and the Wests' sophistication. The interest rate awarded was excessive and should be reduced to 4.5% over base. Damages for distress and inconvenience should be reduced to reflect an 18-month period.

Court Disposition

Appeal allowed in part

Orders

  • NCC applies to limit IFA's liability; case remitted to TCC to assess reasonable amount payable by IFA under the NCC.
  • Interest rate on damages reduced to 4.5% over base rate.