Building Construction Regulations in UK Law

And sixthly, time begins to run in favour of a local authority before danger or discomfort ensues to the occupiers of the building if the building suffers damage or an event occurs which reveals the breach of duty by the local authority or which would cause a prudent owner-occupier to make investigations which, if properly carried out, would reveal the breach of duty by that local authority.

Furthermore, I agree that there is a distinction between the scope of protection and the question of infringement. As to Farmitalia, it is not clear to me that the ECJ either endorsed or rejected the infringement test in that case. Nevertheless, I agree with Kitchin J that there are arguments in favour of the infringement test which do not appear to have been considered in Takeda and which merit consideration by a higher court and perhaps the ECJ.

In the result I have reached the conclusion that although stray remarks may possibly have been made by various persons at different times during the meeting, perhaps as an aside or a casual observation, no one made it clear to Mr Butler that he was not to proceed with the third option of external cabling, and that he left the meeting reasonably under the impression that it was for FAFS to decide which route to pursue.

In my judgment this was a wholly unwarranted assumption on Mr Lewis's part and, of course, completely the reverse of the true contractual situation.

Thistle either knew or ought to have known that FAFS' employees had been in the habit of going out on to the roof for repairs to the system over the past quarter . In my view Thistle owed a duty to FAFS and their employees to make the true position plain beyond any doubt and that they failed, on my findings, to do. In my judgment this failure was negligent conduct on their part and contributed in some measure to the death of Mr Gray.

Failure to address the question whether the circumstances could properly be described as exceptional and to make a finding to that effect is in our judgment fatal to the upholding of these confiscation orders. We would respectfully seek to sustain the principle that confiscation orders should not be quashed for mere defects in procedure.

Lastly, I would add a word to what Lord Justice Gross says in §76(ii) about the burden of proof. It is common for advocates to resort to this when the factual case is finely balanced; but it is increasingly rare in modern litigation for the burden of proof to be critical. Much more commonly the task of the tribunal of fact begins and ends with its evaluation of as much of the evidence, whatever its source, as helps to answer the material questions of law.