Mottram Consultants Ltd v Bernard Sunley and Sons Ltd: HL 1975

Stone panels which had been fixed to the external walls of a school fell off, owing to defective fixing by the contractor.
Held: The contractor was liable for the cost of reinstating the stone panels, calculated at the date when the defect was discovered.
The parties disputed the interpretation of a building contract. The issue was whether or not it was the common intention of the parties to deny the right to the defendant to set-off against the amount claimed in a certificate. The certificates were issued by an architect. The House considered whether there existed a general rule for construing a contract, ‘namely, that one should approach each case without any ‘parti pris’ in favour or against the existence of a right of set off, though one must bear in mind the principle established in Mondel v Steel.’
Held: Even if there was a magic formula, meaning that the words ‘set-off’ or equivalent had to be used in express terms, then the failure to use it does not necessarily mean that that was not what the parties intended in the particular case. Lord Cross referred to the fact that the contract showed clearly that the proprietor was not entitled to withhold payment because of some allegation that there was an error made, and: ‘It was for the architect to put that right if need be in a monthly certificate. I think therefore that the Master was right to give Sunley judgment for the full sum claimed. . ‘
Lord Cross of Chelsea said: ‘When the parties use a printed form and delete parts of it one can, in my opinion pay regard to what has been deleted as part of the surrounding circumstances in the light of which one must construe what they have chosen to leave in. The fact that they deleted (iii) shows that these parties directed their minds (inter alia) to the question of deductions under the principle of Mondel v Steel [(1841) 8 M. and W. 858] and decided that no such deductions should be allowed.’


Lord Cross of Chelsea, Lord Hodgson and Lord Wilberforce


[1975] 2 Lloyd’s Rep 197


England and Wales

Cited by:

CitedBOC Group Plc v Centeon Llc and Centeon Bio-Services Inc CA 29-Apr-1999
The court was asked whether a clause in a share sale agreement setting out the payment obligation worked to preclude the purchaser from exercising a right of set-off when the time comes to pay a later instalment of the price.
Held: The appeal . .
CitedRuxley Electronics and Construction Ltd v Forsyth HL 29-Jun-1995
Damages on Construction not as Agreed
The appellant had contracted to build a swimming pool for the respondent, but, after agreeing to alter the specification to construct it to a certain depth, in fact built it to the original lesser depth, Damages had been awarded to the house owner . .
Lists of cited by and citing cases may be incomplete.

Contract, Damages

Updated: 10 May 2022; Ref: scu.244717