Croudace Construction Ltd v Cawoods Concrete Products Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWTON,LORD JUSTICE BROWNE |
| Judgment Date | 16 February 1978 |
| Judgment citation (vLex) | [1978] EWCA Civ J0216-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 1973 C No. 8721 |
| Date | 16 February 1978 |
[1978] EWCA Civ J0216-2
Lord Justice Megaw
Lord Justice Lawton
and
Lord Justice Browne
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
(On appeal from Mr. Justice Parker)
MR. BRIAN NEILL. Q. C., and MR. ALASTAIR HILL (instructed by Messrs. Wilkinson & Durham, Leatherhead) appeared on behalf of the Appellants.
MR. PATRICK GARLAND, Q. C. and MR. ANTHONY THORNTON (instructed by Messrs. Hamways, Croydon) appeared on behalf of the Respondents.
(as approved)
A LORD JUSTICE MEGAW: We need not trouble you, Mr. Garland.
This is an appeal from the judgment of Mr. Justice Parker on a preliminary issue. His judgment was given on 5th April 1977. The issue arises in an action between Croudace Construction Limited as plaintiffs and Cawoods Concrete Products Limited as defendants. The plaintiffs in or about the year 1972 agreed to buy from the defendants, and the defendants agreed to sell to the plaintiffs and deliver to them at a site at Biggin Hill in Kent, quantities of masonry blocks. The plaintiffs required those materials for the construction of a school on the site. The plaintiffs were the main contractors for the erection of the school, the building owner being the London Borough of Bromley. The main contract provided that the materials should be obtained from the defendants.
The plaintiffs in the action claimed that the defendants were in breach of their contract to supply the masonry blocks. The breaches alleged were in part breaches by way of late delivery, partly in respect of other matters, such as allegations that blocks which had been delivered did not correspond with the contractual description or were otherwise defective. So far as this appeal is concerned, it relates only to that part of the claim which is concerned with the alleged late delivery.
The plaintiffs claimed damages Their claim was particularised as to the damages to include damages by reason of men and materials being kept on the site without work, or without full work, to do because of the absence of the materials which the defendants ought to have delivered and had failed to deliver in time. The particulars of damages also included damages in respect of inflation costs - the extra cost of doing the work due to the fact that the carrying out of the work had been delayed by reason of the delay in the delivery of the blocks. The third item of damage with which we are concerned, as alleged in the particulars of thestatement of claim, was a claim by the plaintiffs to be indemnified against a claim which had been made against them by sub-contractors in respect of delay in the sub-contractors' work which was said to have been caused by the absence of the materials which the defendants ought to have delivered.
The contract of sale was one which had been made subject to certain conditions set out in writing. There was an issue before the learned judge as to whether those conditions were contractual conditions applying to the contract. Mr. Justice Parker decided that preliminary issue in favour of the defendants and there is no appeal by the plaintiffs against that finding on that issue. Hence, for the purposes of this appeal, it is basic that these conditions were conditions of the contract and have to be taken into account.
The second preliminary issue, in respect of which this appeal arises, was an issue as to the meaning of one of those contractual conditions or its effect in relation to the facts of the case. The condition in question is Condition No. 4 of the terms of contract. It is conveniently set out in paragraph 4 of the defence. Before coming to Condition 4 I should refer to Condition 2, which is what may be briefly described as a force majeure clause, under which the defendants "accept no responsibility for failure to supply or for delay in supplying any materials or goods which may be due directly or indirectly to any act of God, or 'force majeure", and then a large number of other matters, such as regulation or direction, strike lock-outs, accident, and so on, are included.
Condition 4 reads as follows: "No complaint of any kind can be entertained (except in special circumstances justifying delay) unless it is made in writing within 24 hours after the time of supply of the materials or goods of which complaint is made. Although we" - that is, the defendants - "make every effort to supply materials or goods strictly toaccord with the quality or specification ordered, if any materials or goods supplied by us should be defective or not of the correct quality or specification ordered our" - that again is the defendants' - "liability shall be limited to free replacement of any materials or goods shown to be unsatisfactory. We" - again the defendants - "are not under any circumstances to be liable for any consequential loss or damage caused or arising by reason of late supply or any fault, failure or defect in any materials or goods supplied by us or by reason of the same not being of the quality or specification ordered or by reason of any other matter whatsoever".
The defendants allege that, by reason of that clause, they are excused from liability for consequences of their breach of contract consisting in delayed delivery of the goods to a very substantial extent, the extent depending upon the meaning to be given to the words "consequential loss or damage".
There might have been difficulties relating to the preliminary issues (as so often arises when preliminary issues are stated) if any question had arisen before this...
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