||All England Reporter
|| All ER (D) 13 (Jan)
|| EWHC 2315 (TCC)
||Queen's Bench Division (Technology and Construction Court)
Judge John Toulmin QC
||Adrian Williamson QC and Piers Stansfield (instructed by Denton Wilde Sapte) for the claimant.
||Ben Quiney (instructed by Halliwells LLP) for the defendant.
||31 October 2005
Contract - Damages for breach - Third party - Entitlement - Contract for professional services in relation to construction of building between defendant and private family company - Company entering into agreement to sell building to controlling shareholder - Defects becoming apparent in construction of building - Whether company entitled to sue on shareholder's behalf - Whether statutory claim preventing third party claim - .
Subject to the question whether the second claimant could recover damages on his own behalf in respect of defects in a building, the law should not tolerate a situation where the defendant could play a 'get out of jail free card' and avoid liability under its contract with the first claimant for those defects because the second claimant had made a family arrangement for the sale of the building from the first claimant to himself personally. The principle that a party could not bring a claim through a third party where it had a substantial claim of its own had to relate to a claim that could be brought on the same conditions as the original claim. A 'dwelling' for the purposes of the was a building used or capable of being used as a dwelling, not being a building that was used predominantly for commercial and industrial purposes,
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