This was an appeal against a ruling on a preliminary issue. Technotrade Ltd had produced a site investigation report dated 14/12/98 on a sloping site. The report found that it was satisfactory for the proposed development of a number of two storey houses and contained no prohibition against assignment.

When the report was produced the freehold of the site was owned by Starglade Ltd, who sold it on 21 June 1999 to Larkstore Ltd. Larkstore then developed the site. Larkstore came into possession of Technotrade’s report in June 1999 and used it without seeking Technotrade’s consent.

Larkstore then engaged Bess Ltd under a design-and-build contract to carry out works to the site. On 13 October 2001, while the works were being carried out by Bess on the site, a landslip occurred causing damage to adjoining properties who sued Larkstore. Extensive stabilisation works then had to be undertaken by Larkstore for purposes of the proposed development.

On 23 February 2004, Starglade and Larkstore entered into a deed of assignment assigning all the benefits under the Technotrade report including the right to sue in respect of Technotrade’s breaches. In consideration for making the assignment, Larkstore agreed to pay Starglade half of the net monies received from Technotrade. Notice of the assignment was given to Technotrade.

Was Larkstore, by virtue of the assignment from Starglade, able to recover the loss, or any part of the loss, suffered by it from Technotrade?