The Gazette 1967/71

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