Musselburgh and Fisherrow Co-Operative Society Ltd v. Mowlem Scotland Ltd [2004] ScotCS 52 (03 March 2004)

Musselburgh and Fisherrow Co-Operative Society Ltd v. Mowlem Scotland Ltd [2004] ScotCS 52 (03 March 2004)

The pursuers' claims in respect of the admitted defects (defects (i) and (ii)) have prescribed because, with reasonable diligence, the pursuers could have ascertained the existence of loss attributable to the defenders' breach more than five years before the action was raised. The knowledge of water ingress during and after the defects liability period, and the lack of internal communication or investigation, does not prevent prescription from running. As for the third defect (seepage), the court accepted the pursuers' expert evidence that seepage through the pool tank was probable and constituted a separate actionable defect, but the reasoning on prescription for this defect is not fully...

Citation
[2004] ScotCS 52
Parties
Pursuer: Musselburgh and Fisherrow Co-Operative Society Limited; Defender: Mowlem Scotland Limited
Jurisdiction
Scotland
Judgment Date
03 March 2004
Procedural Posture
Commercial Building Contract Dispute / Outer House, Court of Session, Opinion
Outcome
Pursuers' claims in respect of admitted defects prescribed; further consideration required for third defect (seepage).
Legal Topics
Building Defects, Contractual Liability, Prescription of Claims, Defects Liability Period, Damages for Breach of Contract
Construction Law Contract Law Prescription and Limitation Building Defects Contractual Liability Prescription of Claims Defects Liability Period Damages for Breach of Contract

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Parties

Musselburgh and Fisherrow Co-Operative Society Limited

Pursuer

Mowlem Scotland Limited

Defender

Procedural Posture

Commercial Building Contract Dispute / Outer House, Court of Session, Opinion

Legal Issues

  1. 1 Whether the pursuers' claims for damages in respect of building defects have prescribed under section 6 of the Prescription and Limitation (Scotland) Act 1973
  2. 2 Whether the pursuers could with reasonable diligence have become aware of the loss attributable to the defenders' breach
  3. 3 Whether seepage through the pool tank constitutes a separate actionable defect

Ratio Decidendi

The pursuers' claims in respect of the admitted defects (defects (i) and (ii)) have prescribed because, with reasonable diligence, the pursuers could have ascertained the existence of loss attributable to the defenders' breach more than five years before the action was raised. The knowledge of water ingress during and after the defects liability period, and the lack of internal communication or investigation, does not prevent prescription from running. As for the third defect (seepage), the court accepted the pursuers' expert evidence that seepage through the pool tank was probable and constituted a separate actionable defect, but the reasoning on prescription for this defect is not fully...

Court Disposition

Pursuers' claims in respect of admitted defects prescribed; further consideration required for third defect (seepage).

Orders

  • Dismissal of claims relating to defects (i) and (ii) as prescribed
  • No final order on defect (iii) (seepage) in the truncated text