Musselburgh And Fisherrow Co-Operative Society Ltd v. Mowlem Scotland Ltd [2006] ScotCS CSOH_39 (07 March 2006)

Musselburgh And Fisherrow Co-Operative Society Ltd v. Mowlem Scotland Ltd [2006] ScotCS CSOH_39 (07 March 2006)

The court held that the pursuers could not recover the entire cost of replacing the waterproof membrane as a single loss, since the defects were distinct and only one (the seepage through the pool tank) had not prescribed. Damages were to be apportioned between the prescribed and non-prescribed defects, with only a proportion of the costs of remedial works recoverable from the defenders. The costs of replacing mechanical and electrical services in the duct were not recoverable, as the prescribed defects were the dominant cause of that damage.

Citation
[2006] ScotCS CSOH_39
Parties
Pursuer: Musselburgh and Fisherrow Co-Operative Society Limited; Defender: Mowlem Scotland Limited
Jurisdiction
Scotland
Judgment Date
07 March 2006
Procedural Posture
Commercial Contract Dispute / Final Judgment After Proof Before Answer and Further Proof
Outcome
Partially in favour of pursuers
Legal Topics
Negative Prescription, Breach of Contract, Apportionment of Damages, Defective Construction, Causation of Loss
Construction Law Contract Law Damages Negative Prescription Breach of Contract Apportionment of Damages Defective Construction Causation of Loss

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Parties

Musselburgh and Fisherrow Co-Operative Society Limited

Pursuer

Mowlem Scotland Limited

Defender

Procedural Posture

Commercial Contract Dispute / Final Judgment After Proof Before Answer and Further Proof

Legal Issues

  1. 1 Whether the defenders are liable for damages arising from a defect in the waterproof membrane of a swimming pool tank
  2. 2 Whether the pursuers' claims for certain defects have prescribed under the Prescription and Limitation (Scotland) Act 1973
  3. 3 How damages should be apportioned where remedial works address both prescribed and non-prescribed defects

Ratio Decidendi

The court held that the pursuers could not recover the entire cost of replacing the waterproof membrane as a single loss, since the defects were distinct and only one (the seepage through the pool tank) had not prescribed. Damages were to be apportioned between the prescribed and non-prescribed defects, with only a proportion of the costs of remedial works recoverable from the defenders. The costs of replacing mechanical and electrical services in the duct were not recoverable, as the prescribed defects were the dominant cause of that damage.

Court Disposition

Partially in favour of pursuers

Orders

  • Defenders to pay £81,581.38 to pursuers as damages, apportioned as set out in the judgment
  • Claims for costs of mechanical and electrical services replacement and certain betterment elements disallowed