West v Ian Finlay & Associates
Citation:  EWHC 868 (TCC),  BLR 324
The Wests sued Ian Finlay & Associates for negligence in relation to the defendant Architect’s supervision of renovations to a domestic property, in which serious defects had subsequently been discovered; these included defects in damp-proofing, floor slabs, and in various mechanical and electrical works.
In response to Finlay’s denial of liability for defects in the mechanical and engineering works, argued on the basis that the subcontractor responsible would not in any event have completed the works, Edwards-Stuart J held that it was for the party in breach to show that, even if it had not breached its duty, the damage would probably still have occurred. He held, further and in any event, that Finlay was liable for the defects in the mechanical and engineering works, there being no evidence to suggest that the subcontractor would not have completed the works.
Edwards-Stuart J was also required to rule on whether Finlay, as a matter of law, could be held responsible for delay in rectifying the defects in damp-proofing, when that delay was the result of a disagreement, between two experts appointed by the Wests, as to which method of rectification was most appropriate. Edwards-Stuart J held that, while the delay was a foreseeable result of Finlay’s breach, it would not be fair and reasonable in the circumstances to hold Finlay liable for all of the delay, holding him liable of 50% of the delay caused by the disagreement.
In the Court of Appeal, the Court over-turned Edwards-Stuart J’s judgment as to the proper interpretation of a net contribution clause and found that the clause did not contravene the requirements of the Unfair Contract Terms Act 1977 or the Unfair Terms in Consumer Contracts Regulations 1999. The Court of Appeal also varied Edwards-Stuart J’s findings in relation to interest and damages for distress and inconvenience.