Standard Form Building Contracts and Duty of Care

DOIhttp://doi.org/10.1111/1468-2230.00235
Publication Date01 Sep 1999
AuthorJane Convery
CASES
Standard Form Building Contracts and Duty of Care
Jane Convery*
In British Telecommunications plc vJames Thomson & Sons Ltd,1the defender and
respondent was a subcontractor engaged to carry out steel work under a contract
between the main contractor and BT for the refurbishment and repair of a
telephone switching station in Glasgow. In the execution of the work, a fire started
in circumstances averred by BT to import fault to Thomson and its servants. BT
raised an action in negligence against Thomson, which was dismissed as irrelevant
both by the Lord Ordinary2and the majority of the Second Division of the Inner
House of the Court of Session.3BT appealed to the House of Lords, where it was
unanimously held that Thomson did come under a duty of care to BT. The decision
raises a number of issues related to the interaction of delictual and contractual
remedies.
It is also incidentally notable for the rather curiously constituted panel which
heard the case. The single speech was given by the former Lord Chancellor Lord
Mackay of Clashfern, who retired on 2 May 1997 but who is still not disqualified
from sitting by the Judicial Pensions and Retirement Act 1993. As has been
pointed out by Lord Keith of Kinkel, ‘for over seventy years it has been customary
for two of the number [of Lords of Appeal in Ordinary] to be appointed from
persons qualified in the law of Scotland’.
4
Not only that, it has been customary for
Scottish appeals to be disposed of by a panel including those two Scottish judges:
a survey of Scottish appeals to the House of Lords over the last thirty years shows
few exceptions to this. True it is that the House of Lords is taken to have judicial
knowledge of the laws of all parts of the United Kingdom;
5
but it is, to say the
least, unusual for a Scottish appeal on an important point of principle to be heard
by a panel comprising only one Scottish judge, and a retired one at that, his
brethren being, respectively, Northern Irish,
6
a New Zealander
7
and English.
8
We
must attribute it to Lord Hope and Lord Clyde being fully occupied with other
judicial business, most probably the unforeseen demands of the Pinochet case.
ßThe Modern Law Review Limited 1999 (MLR 62:5, September). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.
766
*Faculty of Law, University of Edinburgh.
2 Lord Rodger.
3 1997 SLT 767 (the Lord Justice-Clerk, Lord Ross, and Lord Cowie; Lord Morison dissenting).
4 Lord Keith, Stair Memorial Encyclopaedia of the Laws of Scotland, Vol. 6, Part 1, at para 827
(Edinburgh, The Law Society of Scotland: Butterworths, 1988).
5 See Elliot vLord Joicey, 1935 SC (HL) 57.
6 Lord Hutton.
7 Lord Cooke.
8 Lord Mustill (also retired since 7 April 1997) and Lord Lloyd.

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