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Albert Bartlett -v- Gilchrist & Lynn. Remedial costs; alternative remedies.

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Albert Bartlett -v- Gilchrist & Lynn. Remedial costs; alternative remedies.

08 September 2009

[2009] CSOH 125: In this building dispute, Lord Menzies was faced with two alternative remedial solutions for defects in the roof of a large factory. The pursuer's proposed solution was considerably more expensive than that proposed by the defender. The defender argued that the lower costing solution was the correct measure of the pursuer's damages. The court agreed and held that the pursuer's claim should be assessed as the cost of the cheaper remedial solution.

In assessing between alternative measures of damage, the court must weigh up various factors (some of which may have greater or lesser significance in the circumstances of any case). The over-riding principle is reasonableness. A pursuer cannot recover on the basis of a more expensive solution, even if he actually intends to adopt that solution, if there is a cheaper, effective solution available. In the context of a utilitarian, commercial building (such as a factory), a pursuer may well be forced to accept a patched up roof, even 'though he had contracted for a pristine new roof. In such a case, aesthetics will be of very limited relevance and the court will opt for the cheapest solution. Furthermore, a pursuer takes a very real risk if he comes to court seeking damages based on anything other than a fully developed, and costed remedial scheme.

Gavin Walker, advocate, of Axiom was junior counsel for the successful defender.