COST OF INSTRUCTING ARCHITECT TO PREPARE A SCHEDULE OF DEFECTS HELD NOT TO BE CONSEQUENTIAL LOSS

Michael A Johnston v WH Brown Construction (Dundee) Ltd [2000] BLR 243

In Michael A Johnston v WH Brown Construction (Dundee) Ltd [2000] BLR 243 the Inner House of the Court of Session held that the cost of instructing an architect to prepare a schedule of defects before the expiry of the defects liability period was not recoverable from the contractor as consequential loss. The contract itself provided in clause 16.2 that, in the event of defects being discovered before the end of the defects liability period, the remedy of the employer was to give the contractor instructions to remedy such defects and, if, as was the case on the facts, such defects were duly remedied, the employer was held to have no further means of redress under the clause itself. Nor could the employer recover the architects’ fees as consequential loss because the fees were not truly consequential loss but the cost of operating the mechanism in the contract to have the defects remedied.