Mitigation of Loss
31 January 2014
On 17 January Lord Woolman issued his opinion in the £6.8m commercial case of Nolan -v– Advance Construction (Scotland) Limited ( CSOH 4). The defender was represented by Roddy Dunlop QC and Gavin Walker, both of Axiom.
The pursuer sued in respect of the depositing, by the defender of c. 5,600t of construction spoil on his land. He sued for £6.8m in respect of removal costs and lost land value. Advance argued that the pursuer had been the author of his own misfortune because of his refusal to accept the defender's repeated offers to remove the spoil for free. Challenge was also made to the logic of the claim which sought both damages for removal of the spoil and also lost land value on the hypothesis that the land would, even after costly removal, be worthless. The defender further argued that the land was already contaminated with asbestos before the spoil was deposited and so would have required expensive remedial works anyway. Lastly, the defender argued that the pursuer had, in any event, no intention of removing the spoil, even if he was awarded his whole claim. Lord Woolman accepted all of the defender's points and awarded only £19,000 – substantially less than had been tendered. He held that the action had been unnecessary as the defender had always been willing to remove the spoil from before the action had begun. A decision on the defender's motion for the expenses of the entire cause is due to be heard soon.
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