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culars were obtained. They were delivered early
in
1966.
At the end of
1966
the plaintiffs were
still waiting for a list of documents from F which
they only received after they had taken out a
summons for judgment in default of delivery of
the list. In
January 1967
discovery was sought
by the defendant but not offered until
November
of that year; in
January 1968
after the 3 Court
of Appeal decisions in Alien v. Sir Alfred
MeAlpine & Sons Ltd. (1968) 2 WLR 366; the
defendant's solicitors took out a summons to dis
miss the action for want of prosecution. Master
Diamond refused to dismiss the action and
ordered it to be tried by an official referee; Cooke,
J. on appeal reversed the order on the grounds of
the plaintiffs' delay since
January 1967;
his view
was that a fair trial could not be had after so
great a delay and he refused leave to appeal. On
appeal by the plaintiffs the Court of Appeal had
before it an affidavit by their solicitor explaining
part of the delay since
January 1967.
Lord Denning M. R. said that the real ques
tion was how the plaintiffs 8 or 9 months delay
since January, 1967 was such that their action
should now be dismissed for want of prosecution.
The delays were deplorable on both sides. But the
outstanding point in the present case was that
F himself
by his solicitors
had largely contributed
to the delays and brought them about by the pro
cedure adopted, and now at the last moment
sought to escape trial by saying that in the last
few months the plaintiffs had delayed. Though
there had been such delay, the prime cause was
the defendant's tactics. In those circumstances it
would not be just to dismiss a claim against him
for work done on his own house. The appeal
should be allowed and the matter ordered to be
tried before the official referee and disposed of
quickly and finally.
Diplock, L. J. said that it
was a borderline case and on an oral contract
and there was a risk that a fair trial of the issue
would no longer be possible. The position had
arisen in January 1967, already 8 years after the
events constituting the cause of the action. There
had not been mere non-activity on the part of the
defendant in this case.
He or his solicitors had
adopted procedures which positively invited de
lay;
and the plaintiffs' tardiness in the latter
stages was not sufficient to justify their action
now being dismissed for want of prosecution.
Sachs, L. J., also concurring, said that he would
hesitate long before making an order which
would result in the plaintiffs foregoing all pay
ment for work and would ensure that someone,
prima facie the defendant, got that benefit for his
own house, without personally making any pay
ment either to the builders or anyone else. The
defendant by the conduct of the defence had dis
played symptoms of making the case so burden
some as not to be worth pursuing. It would be
contrary to the justice of the case to strike out
the plaintiff's claim finally. Appeal allowed.
No
order for costs, the solicitors on both sides to
understand that they should pay their own costs.
(George A. Poole Ltd. v. Forrest. Vol. 112.
S.J. 355).
House Purchase-Building Contract
By contract in writing dated November 21st
1958 a firm of Building Contractors agreed to build
a dwelling house for the plaintiff and to "build
and complete in a workmanlike manner and ac
cording with the specification hereto annexed".
On February 3rd, 1960 the local authority issued
a certificate to the effect that the certifier had
examined the dwelling house and "that the same
has been constructed to the best of (his) know
ledge and in accordance with the (deposited)
plans and the by laws of the Council and is fit
for human habitation". Certain defects developed
later. These were caused, so the Court found, by
failure to carry the foundations of the house on
the North-West side to a sufficient depth. In
action for damages the defendants contended,
among other contentions, that the certificate was
made conclusive evidence of the completion of
the house in accordance with the Council and
that thereafter no complaint could be main
tained by the plaintiff.
Held the plaintiff was entitled to a, damages
because :—
1. the relevant clause of the contract did not
bar the plaintiff's claims since the certificate
thereunder was conclusive only that the house
was completed and was not conclusive against
complaints, such as complaints, defects in con
struction, otherwise open to the plaintiff.
2. There was some ambiguity in the clause of
the contract whether having regard to the con
tract in the specification and particularly the
following—"and to (the local authority) satis
faction" the approval of the local authority pro
vided an effective answer to the plaintiff's claim
for alleged breach of an obligation to be fulfilled
in a workmanlike manner; in view of the ambi
guity the primary obligation "in a workmanlike
manner" was not so limited, that defendents
obligation under the contract remained an
obligation to build in a workmanlike manner a