Johnston v WH Brown Construction (Dundee) Ltd [2000] ScotCS 94 (4 April 2000)

Johnston v WH Brown Construction (Dundee) Ltd [2000] ScotCS 94 (4 April 2000)

Clause 16.2 of the contract provides its own remedy for defects discovered within the defects liability period, namely, instruction to the contractor to remedy defects. The cost of preparing a schedule of defects by a third party is not consequential loss as understood in Hadley v. Baxendale and is not recoverable from the contractor. The employer must bear such costs himself.

Citation
[2000] ScotCS 94
Parties
Pursuer and Reclaimer: Michael A. Johnston; Defenders and Respondents: W. H. Brown Construction (Dundee) Limited
Jurisdiction
Scotland
Judgment Date
04 April 2000
Procedural Posture
Reclaiming Motion (appeal) / Inner House, Court of Session, Post Dismissal of Action at First Instance
Outcome
Reclaiming motion refused; claim for architect's costs dismissed.
Legal Topics
Defects Liability Period, Consequential Loss, Damages for Breach of Contract, Interpretation of Standard Form Contracts
Construction Law Contract Law Defects Liability Period Consequential Loss Damages for Breach of Contract Interpretation of Standard Form Contracts

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Parties

Michael A. Johnston

Pursuer and Reclaimer

W. H. Brown Construction (Dundee) Limited

Defenders and Respondents

Procedural Posture

Reclaiming Motion (appeal) / Inner House, Court of Session, Post Dismissal of Action at First Instance

Legal Issues

  1. 1 Whether the employer is entitled to recover as consequential loss the cost of architect's investigations and report for preparing a schedule of defects under clause 16.2 of the contract.

Ratio Decidendi

Clause 16.2 of the contract provides its own remedy for defects discovered within the defects liability period, namely, instruction to the contractor to remedy defects. The cost of preparing a schedule of defects by a third party is not consequential loss as understood in Hadley v. Baxendale and is not recoverable from the contractor. The employer must bear such costs himself.

Court Disposition

Reclaiming motion refused; claim for architect's costs dismissed.